Opinion
40636.
DECIDED APRIL 24, 1964.
Declaratory judgment. Bulloch Superior Court. Before Judge Usher.
Neville Neville, for plaintiff in error.
Allen Edenfield, contra.
The only exception in this declaratory judgment case is to the overruling of the general demurrer to the petition. "Whether or not the plaintiff is entitled to a declaratory judgment upon a hearing, is not dependent upon a determination of whether or not his contention in the controversy be a correct one. It may be found untenable upon the hearing, but he will not for that reason be sent from court, but is entitled to have the court, upon evidence and not upon the hearing of a general demurrer, declare his rights or lack of any right in the premises. To withstand a general demurrer it is only necessary that the plaintiff show an existing justiciable controversy, as provided by the Declaratory Judgment Act. It is not necessary that the petition go farther and show that the plaintiff's contention is correct." Georgia Cas. c. Co. v. Turner, 86 Ga. App. 418, 422 ( 71 S.E.2d 773). Accord: Parks v. Jones, 88 Ga. App. 188 ( 76 S.E.2d 449); Darling v. Jones, 88 Ga. App. 812, 815 ( 78 S.E.2d 94); Griffin v. Hardware Mut. Ins. Co., 93 Ga. App. 801, 803 (1) ( 92 S.E.2d 871); Buffington v. New Hampshire Fire Ins. Co., 104 Ga. App. 139, 141 (1) ( 121 S.E.2d 270). See St. Paul Fire c. Co. v. Johnson, 216 Ga. 437 ( 117 S.E.2d 459). The petition here presented a justiciable controversy and the general demurrer was properly overruled.
Judgment affirmed. Bell, P. J., and Jordan, J., concur.
DECIDED APRIL 24, 1964.
This is a suit for declaratory judgment based on the following facts: In 1960, Darby (plaintiff) executed to Mock a security deed in the amount of $4,122, repayable in 120 monthly installments running to August 1, 1970. The security deed contained the following provision: "Fire and extended coverage insurance will be provided on the dwelling . . . equal to at least the unpaid principal and interest, and at no costs to . . . [Mock]." (Emphasis added). In October, 1962, after 25 payments, the house burned. Settlement was made by Darby with the insurance company. Darby now seeks a declaration that he need pay Mock only the principal and interest due at the time suit was filed ($3,593.05), alleging a continuing offer of this amount. He bases this on the intent of the provision quoted. Mock contends that plaintiff has no right to prepay the debt in less than the remaining amount due under the security deed (95 payments at $50 each for a total of $4,750).
Mock's general demurrers were overruled. The trial judge found for Darby and ordered the satisfaction of the security deed and note on payment of $3,593.05. Mock excepts only to the general demurrer order.
The writ of error was first taken to the Supreme Court, which transferred the case here. Mock v. Darby, 219 Ga. 597 ( 134 S.E.2d 805).