Summary
In Atkinson v. Drake, supra, this court said: "Where the only equitable relief sought was an injunction against the obstruction or closing of a private way after the obstruction had been placed therein, the petition was subject to general demurrer, since there was an available remedy at law under Code § 83-119.
Summary of this case from Atkinson v. DrakeOpinion
19065.
SUBMITTED SEPTEMBER 16, 1955.
DECIDED OCTOBER 11, 1955. REHEARING DENIED NOVEMBER 16, 1955.
Injunction. Before Judge Pharr. Fulton Superior Court. June 3, 1955.
Vester M. Ownby, for plaintiff in error.
Harold Sheats, contra.
Where the only equitable relief sought was an injunction against the obstruction or closing of a private way after the obstruction had been placed therein, the petition was subject to general demurrer, since there was an available remedy at law under Code Ch. 72-2. Haney v. Sheppard, 207 Ga. 158 ( 60 S.E.2d 453). Hence the amendment thereto, alleging that the plaintiff had removed the obstructions and the defendant "threatens to re-erect and unless restrained will re-erect and . . . close the driveway," fails to breathe life into the lifeless petition no matter how good a cause of action the amended petition might now allege as to the alleged threats. See Code §§ 81-1302, 81-1303. It follows that the court erred in overruling the general demurrer to the petition as amended.
Judgment reversed. All the Justices concur.