Opinion
15611.
OCTOBER 10, 1946.
Injunction, etc.; declaratory judgment. Before Judge Hawkins. Cobb Superior Court. July 25, 1946.
Powell, Goldstein, Frazer Murphy, C. Baxter Jones Jr., and Schroeder Walker, for plaintiffs.
J. G. Roberts, for defendant.
1. The intent and purpose of the Declaratory Judgment Act is to declare rights, status, and legal relations between parties, and not to execute remedies. A petition containing an action in ejectment and a suit for specific performance is not a proper cause for relief under such act.
2. Since the petition does not state a proper cause for declaratory relief, the other questions raised by the demurrer will not now be decided.
No. 15611. OCTOBER 10, 1946.
Sidney A. Clein and Mrs. Bessie B. Jacobson as executrix of the estate of Herman Jacobson brought a petition in the Superior Court of Cobb County against B. Kaplan for a declaratory judgment and other relief, and alleged: On August 25, 1945, by written contract, Kaplan leased to Sidney A. Clein and Herman Jacobson for a term of ten years, beginning March 1, 1946, and ending February 28, 1956, certain described premises located in the City of Marietta, Georgia. The lessees were to pay, at the office of the lessor in Marietta, a monthly rental of $125 in advance, beginning on March 1, 1946, and a like sum on the first day of each month thereafter until the end of February, 1951, and $150 on March 1, 1951, and a like amount on the first day of each month thereafter until the expiration date of the lease. A failure on the part of the lessees to pay the agreed monthly rental gave the lessor the right, at his option, to declare the lease void, cancel the same without any legal proceedings, re-enter and take possession of the leased premises. Herman Jacobson died March 23, 1946, and his widow, Bessie B. Jacobson, qualified as executrix of his estate and is authorized to bring this suit. On the date the lease was executed and continuously thereafter until about March 20, 1946, the leased premises were occupied by Western Auto Association Store, a prior tenant of the lessor. While their lease, by its terms, commenced on March 1, 1946, the lessees did not enter or take possession of the leased premises during the period from March 1 to March 20, 1946. When the lease was executed, and continuously thereafter until now, the lessor's principal place of business was next door to and adjoining the leased premises. On or about February 27, 1946, the lessee Clein went to the office of the lessor, and having in his possession $125, offered to pay that amount as rent for the leased premises from March 1 through March 31, 1946. The lessor refused to accept said sum of money on the sole ground that the lessees should pay no rent until the prior tenant evacuated. On or about March 20, 1946, the lessee Clein, acting through his wife and agent, mailed a check for $125 to the lessor at his office. The check stated on the face thereof that it applied as rent of the leased premises from March 20 to April 20, 1946. The lessor received the check in due course of mail, and while he has not cashed or deposited the check, he has never objected to the form of the tender on the ground that it was made by check or on any other ground of informality. From March 20, 1946, and continuously until now, except during the period from March 20 to April 17, 1946, when the lessee Clein would be the keys for the leased premises to enter therein to make inspection and plan certain alterations, the keys were kept by the lessor in his office under agreement with the lessee Clein that they would be so retained by the lessor as bailee for the sole benefit of the lessees, so that the agents of the lessees could conveniently obtain them and enter the premises. The lessee Clein, during the period from March 20 to April 17, 1946, left in the leased premises a folding ruler, his own personal property. During the period from March 20 to April 17, 1946, certain carpenters, the agents of the lessees, both with the lessees and alone, entered the leased premises for the purpose of making inspections and to plan certain alterations, and when entering alone they obtained the keys from the lessor and returned them to him after leaving the premises. At no time since the date the lease was executed had the lessor made any demand for the payment of rent on either of the lessees. On or about April 17, 1946, the lessor by letter to the lessees, which was received by them in due course, advised the lessees that, because of their failure to pay the rent of $125 on April 1, 1946, for the leased premises in accordance with the provisions contained in the lease, he had declared the lease void and had taken possession of the leased premises. After receipt of this letter and on or about April 19, 1946, the lessee Clein went to the office of the lessor and offered to pay in cash $125 as rent for the leased premises from March 20 through April 20, 1946, and a like amount in cash as rent for the premises from April 20 through May 20, 1946, which amounts were refused by the lessor on the sole ground that he had declared the lease void and had re-entered and taken possession of the leased premises. Since April 17, 1946, the lessor had refused to allow the lessees to enter the leased premises; and he had continuously refused to surrender the keys to them. The lessees had desired to enter the premises to make inspection and plan certain alterations so that they could install a jewelry store therein. From April 17, 1946, and until the lessees receive the keys and are allowed to re-enter the leased premises they should be relieved from the payment of rent.
To the petition was attached, as an exhibit, a copy of the lease contract of August 21, 1945, which, in addition to what appears in the allegations of the petition, provided: Lessor, at his option, on a breach of the lease by lessees, may card for rent and sublet the premises at the best price obtainable by reasonable effort, under private negotiations, and charge the balance, if any, between the price of subletting and the contract price to lessees and hold them therefor. Such act being done by lessor as the agent of lessees.
As against any obligation or liability accruing under the lease contract, lessees waive all homestead and exemption rights allowed to them or the family of either under or by virtue of the laws of this State or the United States.
Lessees are to repair at their expense all plumbing which may be damaged by freezing; also to be responsible for all damage to the property of other tenants caused by the overflow or breaking of water pipes in the leased premises.
Lessees are not to assign or sublet the leased premises without the written consent of lessor, and will deliver the premises at the expiration of the lease in as good order and repair as when first received, wear and tear excepted.
Lessees release lessor from any and all damage to both person and property and will hold lessor harmless from all such damage during the term of the lease.
Should the premises be destroyed or so damaged by fire during the term of the lease as to become untenantable, the lease shall cease from the date of the fire.
Lessees are to make no change of any nature in the leased premises without the written consent of lessor or his agent, or paint signs on the leased premises; lessor or his agent have the right to enter the premises at all reasonable times to examine the same, and to make all necessary repairs, additions, or alterations as may be deemed necessary for the safety and preservation of the building, and to enter upon the leased premises at any time to repair lessor's adjoining property, if any.
Lessees are not to leave the premises unoccupied, nor do or permit done any act which would vitiate the fire insurance policy on said property, or increase the insurance rate; and are to pay all light, water, heat, gas, and power bills accruing against said property during the terms of the lease, and to comply with all rules, orders, ordinances, statutes, and regulations of both the city and State during the period of the contract.
Should bankruptcy of State insolvency proceedings be filed and sustained against lessees, their heirs or assigns, lessor, at his option, has the right to immediately declare the lease void and resume possession of the leased property.
Lessor has a right to card the leased premises for rent or sale at any time within thirty days immediately prior to the expiration date of the lease, and during that period exhibit the leased premises during reasonable hours.
Should lessees violate any of the restrictions in the lease or fail to keep any of its covenants, lessor or his agent may at once, if they so elect, declare the lease void, terminate it, and at once take possession of the premises.
The leased premises shall not be used for any purpose except that herein designated, namely, a jewelry store, without the written consent of the owner, or of the owner's agent.
Lessees are to erect a front and remodel the interior to suit their requirements at their own expenses.
The petition also alleged that an actual controversy existed between the lessees and the lessor with reference to their respective rights under the lease contract, as shown by the allegations made and the provisions contained in the contract.
Besides for process the prayers were:
1. That the court take jurisdiction of the controversy and declare the rights and other legal relations of the parties hereto.
2. That the court declare and adjudicate that the facts as alleged are true.
3. That the court declare and adjudicate that lessor had no right to declare said lease void without first making a demand on lessees for the payment of any rent due under the contract.
4. That the court declare and adjudicate that, even after declaring said lease void, lessor had no right to re-enter the leased premises, without first communicating to lessees a declaration that said lease was void, and allowing lessees a reasonable time in which to pay any rent due.
5. That the court declare and adjudicate that lessees obtained legal possession of the leased premises after March 20, 1946, and prior to April 17, 1946.
6. That the court declare and adjudicate that lessees are at the present time entitled to legal possession of the leased premises.
7. That the court direct lessor to surrender to lessees the keys to the leased property, unless they shall already be in custody of the court, and either:
(a) Declare and adjudicate that lessees are still legally in possession of the leased premises, and enjoin lessor from interference therewith; or
(b) Declare and adjudicate that lessor is wrongfully in possession of said premises, and either:
(1) Declare and adjudicate that, under the lease, lessees obtained a property right in the leased premises, being an estate for years, and accordingly issue a writ of injunction against lessor as to the leased premises; or
(2) Declare and adjudicate that, under the lease, lessees obtained a contractual right to a usufruct of the leased premises, and compel specific performance by lessor of such contract.
8. That the court declare and adjudicate that lessees are relieved from paying rent for the leased premises from April 17, 1946, until lessees receive the keys for the leased premises and are allowed to re-enter the same.
9. That the court designate a time for trial and determination of the case, not earlier than fifteen days after service on lessor of the petition and process.
10. That petitioners have whatever other and further and consequential relief to which they are entitled under the Declaratory Judgment Act.
On presentation of the petition the court passed an order directing that process issue and that the defendant-lessor be served, and set a hearing.
The defendant responded and demurred to the petition on both general and special grounds:
1. That the petition fails to set forth a cause of action or to show any legal grounds for the granting of the remedy of declaratory judgment.
2. There is no allegation in the petition that the petitioners do not have an adequate remedy at law; on the contrary, the allegations show that they have a legal remedy for damages for breach of contract, and there is no valid reason shown why they should not proceed under this legal remedy rather than attempt to have a declaratory judgment rendered.
3. The petition demonstrates that its real purpose is to obtain coercive relief, and the declaratory relief prayed for is entirely incidental to such relief, and, as such, the petition fails to show a state of facts which would authorize or justify the rendering of a declaratory judgment.
4. The suit is really one for specific performance of a contract, which, under the allegations of the petition, has already been breached, and the prayer for declaratory judgment is made secondarily to the real relief sought.
5. The facts alleged do not constitute a cause entitling the petitioners to a declaratory judgment.
6. The defendant demurs specially to the allegations of paragraph 9 on the ground that they are irrelevant, immaterial, and do not constitute a valid legal tender.
7. He demurs specially to the allegations in paragraphs 16 and 17 upon the ground that by the wildest imagination such facts do not constitute possession, either as a matter of law or fact.
8. He demurs specially to the allegations in paragraph 18, as to "agents, being certain carpenters residing in or near Marietta, Georgia," on the ground that the same are too vague, general, and indefinite to apprise the defendant of the contention of the petitioners, and he is entitled to know what agents it is contended entered the building, their names, and the time of such entry.
9. He demurs specially to the allegations in paragraph 19 on the ground that they are too vague, general, and indefinite to apprise the defendant of the contention of the petitioners, and he is entitled to know what agents entered the premises, their names, and the time when it is contended they entered.
10. He demurs to the allegations in paragraph 20 on the ground that the provisions of the lease in question do not require any demand for the payment of rent, but on the contrary place the duty on the lessees to pay the rent promptly in advance.
After a hearing, the court passed an order overruling grounds 6 and 7 of the demurrer, but sustained grounds 1, 2, 3, 4, 5, and 10, and dismissed the petition. No ruling was made on grounds 8 and 9.
The exception is to this order, and the case is here for review on a direct bill of exceptions.
1. A declaratory judgment or decree is one which simply declares the rights of the parties or expresses the opinion of the court on a question of law, without ordering anything to be done; its distinctive characteristic being that the declaration stands by itself, and no executory process follows as of course; and the action is therefore distinguished from other actions in that it does not seek execution or performance from the defendant or opposing party. Black's Law Dictionary; 1 C. J. S., "Actions," 1018, § 18. And in 16 Am. Jur. 276, § 3, a distinction is made between a declaratory judgment and an ordinary judgment as follows: "The distinctive characteristic of a declaratory judgment is that the declaration stands by itself; that is, no executory process follows as of course. In other words, such a judgment does not involve executory or coercive relief. Ordinary judgments are primarily intended in most cases to remedy or make compensation for injuries already suffered, and for that reason must, in addition to determining the rights involved, grant consequential or curative relief in some form. In fact, the view has been expressed that provision for some form of execution is an essential part of a judgment, although it is now generally recognized that the function of the judgment is limited to adjudicating the existence or non-existence of the right or liability in question, and that the right to issue process for its enforcement, while ordinarily a consequence of the judgment, is not an integral part or an indispensable adjunct thereof." The nature of an action for declaratory relief is "neither legal nor equitable, but sui generis." Great Northern Life Ins. Co. v. Vince, 118 F.2d 232.
The declaratory judgment was unknown to the common law, either at law or in equity. The first general statute on declaratory judgments was enacted in England in 1852. (15 16 Vict. Chap. 86.) The pertinent provision of that statute was: "No suit . . shall be open to objection on the ground that a merely declaratory decree or order is sought thereby, and it shall be lawful for the court to make binding declarations of rights without granting consequential relief." In 1922 the National Conference of Commissioners on Uniform State Laws approved the Uniform Declaratory Judgment Act which has now been enacted in twenty-four States. Six other States have adopted the uniform act with certain changes in form. Thirteen States, including Georgia, have adopted somewhat different declaratory judgment acts. The Declaratory Judgment Act in this State was passed in 1945 (Ga. L. 1945, p. 137). While the twenty-one different declaratory judgment statutes which we have in this country differ somewhat in form, yet in intent and purpose they agree. They are all designed to relieve against uncertainty and insecurity; to declare rights but not to execute remedies. As was well said by Professor Borchard (Declaratory Judgments, 107-109): "The two principal criteria guiding the policy of rendering declaratory judgments are: (1) When the judgment will serve a useful purpose in clarifying and settling the legal relations in issue; and (2) when it will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding." This court in Shippen v. Folsom, 200 Ga. 58 ( 35 S.E.2d 915), said: "As we understand the beneficent purposes and intent of the act, it was not intended in some ambiguous way to blot out `at one fell swoop' innumerable rights and privileges bestowed by the Code and by the fundamental principles of law, but was intended by the very meaning and concept of the word to give additional protection to persons who may become involved in an actual justiciable controversy, in that they differ between themselves as to what their rights are, and who wish to find them out before taking some dangerous step which might or might not be authorized." In AEtna Casualty Surety Company v. Quarles, 92 F.2d 321, 325, the court said: "The statute providing for declaratory judgments meets a real need and should be liberally construed to accomplish the purpose intended, i. e., to afford a speedy and inexpensive method of adjudicating legal disputes without invoking the coercive remedies of the old procedure, and to settle legal rights and remove uncertainty and insecurity from legal relationships without awaiting a violation of the rights." Section 13, which is the last section of our act, provides: "The purpose of this act is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations and is to be liberally construed and administered." The first three sections of our act, which provide for declaratory relief, are almost verbatim with the first three sections of the Federal act, which provide likewise for declaratory relief, except that section I (b) of our act, which does not appear in the Federal act, provides: "In addition to the cases specified in paragraph (a) of this section, the respective superior courts of the States of Georgia shall have power upon petition, or other appropriate pleading, to declare rights and other legal relation of any interested party petitioning for such declaration, whether or not further relief is or could be prayed, in any civil case in which it appears to the court that the ends of justice require that such declaration should be made, and such declaration shall have the force and effect of a final judgment or decree and be reviewable as such."
The plaintiffs in error here, among other things, ask the court to construe their lease contract and by declaration say whether it conveyed to them an estate for years, and if so grant them relief in ejectment, or only a usufruct and if that event grant them relief by specific performance. In Corcoran v. Royal Development Company, 121 F.2d 957, the court said: "The parties and the judge speak of this as an action for a `declaratory judgment' under Section 400 of Title 28, U.S.C.A., and it is true that Section 400 (1) includes cases where some immediate relief is asked in addition to a `declaration' of rights. The purpose of this is apparent; there may be situations in which a plaintiff needs immediate relief, but also needs an adjudication or rights other than those on which the immediate relief is dependent. In such situations the action has two aspects: In part it is an ordinary action; in part it is an action for a `declaratory judgment.' But it is absurd to speak of a judgment as `declaratory' in so far as it `declares' no more than is necessary to sustain the immediate relief prayed, for in that sense every action is for a `declaratory' judgment. A court can not grant any relief whatever except as it finds, and by finding `declares' that the plaintiff has those rights on which the remedy must be based. In the case at bar the complaint asks the declaration of no rights that would not have to be adjudicated before there could be a distribution of the defendant's assets; and stripped of its verbiage, the complaint is nothing more than a simple creditors' action, asking the distribution of a corporation's assets in equity." Applying this rule, which we think is sound, to the allegations of the petition in the instant case, when stripped of its verbiage, we have an action in ejectment and a suit for specific performance contained in a one-count petition for declaratory relief. Is such procedure authorized under our Declaratory Judgment Act? We are not inclined to think so. Following the rule in Corcoran v. Royal Development Company, supra, it can not be done under section I[a] of the act, and it is inconceivable to think that the legislature by section I[b] of the act intended to blot out "at one fell swoop" existing rules of pleading and procedure which it and the courts for more than a century have tried to clarify and make certain. Looking at the act as a whole, considering its beneficent purpose, and construing it as we do, such a proceeding as here is not authorized under the act. Therefore it follows from what has been said that the petition did not state a proper cause for declaratory relief, and for that reason it was not error to sustain the general demurrer and dismiss the case.
2. Since we have held in the preceding division that the petition did not state a proper cause for declaratory relief, the other questions raised by the demurrer will not now be decided.
Judgment affirmed. All the Justices concur.