Opinion
34601.
DECIDED MAY 13, 1953.
Declaratory judgment. Before Judge Edmondson. Lumpkin Superior Court. February 7, 1953.
James H. Wood, Brannon Brannon, for plaintiff in error.
Telford, Wayne Smith, Kenyon, Kenyon Gunter, contra.
The petition alleged a good cause of action for a declaratory judgment as against an oral motion to dismiss, and the court erred in sustaining such motion and in dismissing the action.
DECIDED MAY 13, 1953.
J. H. Parks petitioned Lumpkin Superior Court for a declaratory judgment, naming as defendants therein Mrs. Fred Jones, Jr., F. P. Sills, Jr., and Phil M. Landrum. The petition alleged substantially: that in 1948 Honorable M. E. Thompson, Acting Governor of Georgia, caused certain proposed Constitutional amendments to be published in numerous newspapers over the State, among which was the Dahlonega Nugget; that such amendments were published several times in the Dahlonega Nugget; that, due to an opinion of the Attorney General of Georgia, rendered on September 17, 1948, the Acting Governor requested that the Dahlonega Nugget and other newspapers throughout the State stop publication of the amendments; that in pursuance of such request the Dahlonega Nugget stopped said publications and was subsequently paid by the State therefor the sum of $44.12, which was received by defendant F. P. Sills, Jr., then owner of the Nugget; that on June 1, 1948, defendant Sills contracted to purchase the Nugget from defendant Mrs. Fred Jones, Jr.; that on January 5, 1949, defendant Mrs. Jones petitioned the superior court for the appointment of a receiver to operate the Nugget, the defendant Sills having defaulted on his contract of purchase and absconded; that the court named defendant Phil M. Landrum as receiver to take over and operate the Nugget and to secure bids from prospective purchasers of the business; that on March 1, 1949, pursuant to an order of the court dated February 28, 1949, Phil M. Landrum, receiver, executed and delivered to the petitioner a bill of sale to the Dahlonega Nugget, including the subscription list thereto, the assets thereof as listed by inventory, and the name and good will thereof, a copy of such bill of sale being attached to the petition as Exhibit A; "that on said date of sale by the receiver to your petitioner, your petitioner took possession of and began to publish said paper and has continuously since said date exercised his right of ownership and publisher of said newspaper, in the honest and sincere belief that as owner of said newspaper, its name and good will, any benefit flowing to the said Dahlonega Nugget as such would be, and your petitioner alleges is, the property of your petitioner, especially where not specifically identified by the said receiver, incorporated in his inventory and return to the court, and a specific order passed thereon disposing of same under the said receivership"; "that on the 27th day of February, 1952, your petitioner received notice from the Georgia Press Association that the said Dahlonega Nugget was due from the said State of Georgia the sum of $788.14 as a result of the passage of House Resolution Number 146-619a at the 1952 session of the legislature, authorizing the payment of certain sums to various newspapers, one of which was The Dahlonega Nugget, and that upon the condition your petitioner file with the said Georgia Press Association his application therefor, check in the amount of $788.14 payable to The Dahlonega Nugget would be mailed your petitioner"; that none of the defendants herein has filed or in any way set up a claim thereto, either as an account receivable, a chose in possession, or a chose in action; that said fund was in no way considered an asset of The Dahlonega Nugget by any of the parties to the receivership proceedings, and such was not incorporated in any of the inventories or returns of the receiver, or in any of the orders of the court in such proceedings; that the final decree in the receiver proceeding adjudicated the rights of every party thereto and became the "law of the case," and none of said parties has any legal claim in law or equity to the fund authorized by said House Resolution; "that the said fund set aside by the State of Georgia in pursuance of said Resolution is set aside in the name of and for the benefit of The Dahlonega Nugget, not in the name of either its past or present owners. The Dahlonega Nugget being the only legal entity recognized by the State of Georgia and the Georgia Press Association as being entitled to said fund, and the name `The Dahlonega Nugget' being the exclusive property of your petitioner. Your petitioner, therefore, so long as said title vests in him, is the only person who can legally petition for funds in the name of and belonging to the said Dahlonega Nugget. Also, your petitioner is the only person authorized to endorse checks made payable to the said Dahlonega Nugget without permission and authority from your petitioner, which authority has not been designated to anyone to petition for or receive said fund, other than his attorney at law." The remaining allegations of the petition set up that the fund sought was not in esse at the time the petitioner bought the Nugget from the receiver and is not an account receivable which was reserved to the receiver in said bill of sale.
The court sustained an oral motion to dismiss and dismissed the action, and the petitioner excepts.
The petitioner claims a legal right to the fund set up by the House Resolution (Ga. L. 1952, p. 503), as against the defendants named in the petition, and seeks a legal declaration of such rights. We think what was said in Georgia Casualty c. Co. v. Turner, 86 Ga. App. 418 ( 71 S.E.2d 773), is applicable in the instant case. The court said: "The purpose of the act [Declaratory Judgment Act of 1945, Ga. L. 1945, p. 137] is, as declared in section 13 thereof, to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations, and the statute is to be liberally construed. [Citations] . . . 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."
The plaintiff presented a justiciable issue and is entitled to an adjudication of his claim on the merits of the case.
The court erred in sustaining the oral motion to dismiss and in dismissing the action.
Judgment reversed. Sutton, C. J., and Worrill, J., concur.