Opinion
41013.
DECIDED MARCH 25, 1965.
Declaratory judgment, etc. Newton Superior Court. Before Judge Guess.
Ballard Thigpen, W. D. Ballard, Troy R. Thigpen, Jr., for plaintiffs in error.
Reuben M. Tuck, Greeley Ellis, contra.
The transfer of this case to this court by the Supreme Court is conclusive as to this court's sole jurisdiction over this case as the record and prayers now stand. There is only one other phase of the case remaining and that is whether the petition as amended, as shown by the record here, sets forth a cause of action for declaratory judgment after the injunctive features were removed. Such a ruling cannot be made in passing on the record as of the time the demurrers were sustained. The question can only be reached in a consideration of whether the action for a declaratory judgment had also become moot and the consequence of a finding that it had. There was no prayer for a money judgment in this case. There was only a prayer for a declaratory judgment and injunction. The developments after the court sustained the demurrers and dismissed the action not only rendered moot the question of enjoining the performance of the contract but also rendered moot the question whether the plaintiffs were entitled to a declaratory judgment because upon performance of the contract there was no basis in law for a declaratory judgment, since all of the rights of the parties had accrued and all the plaintiffs have to do is to file an action in the appropriate forum for a money judgment and whatever other relief they may be entitled to, if any, since the plaintiffs needed no adjudication to guide them in any future action they might have to take. Any ruling we now make on the theory of a declaration of rights would only be an advisory opinion which this court does not have jurisdiction to make.
In this situation, since the only questions sought to be raised are moot, the writ of error must be and is hereby dismissed without prejudice to the urging of any rights to which the plaintiffs may be entitled under the facts as they now appear.
Writ of error dismissed. Frankum and Pannell, JJ., concur.
DECIDED MARCH 25, 1965.
C. E. Trainer and W. T. Greer, Sr., as citizens and taxpayers of the City of Covington, filed an action for injunctive relief and other relief against the City of Covington, et al. alleging that a contract executed by the defendants with Hunnicutt Associates, Inc., also named a party defendant, for revaluation of all property in the City of Covington, Newton County, Georgia, was not executed according to law, was ultra vires the authority of the defendants, was illegal because of certain illegal considerations set forth in the contract, and that the defendants conspired to accomplish their design and purpose of increasing property valuations in the City of Covington to values higher than those established by the Newton County Tax Assessors and as approved by the State Revenue Commission. The plaintiffs alleged that they were residents, taxpayers whose taxes were paid, had an interest in the matters alleged, and that they were without remedy at law to prevent further execution of the contract. The plaintiffs further alleged that the expenditure of money under said contract was not included in the budget and was in excess of anticipated revenue and a violation of the city charter. The plaintiffs prayed for a declaratory judgment that defendants mayor and councilmen, individually and severally, in their respective capacities, "be declared personally liable to reimburse the City of Covington treasury for any sums which may have been paid to defendant Hunnicutt and Associates, Inc., under said contract." The petition further prayed that the defendants be enjoined from making any further performance of the terms under the contract and that the Board of Tax Assessors be enjoined from ratifying and adopting said contract in any manner whatsoever. Thereafter, certain newly-elected city officials took office and the plaintiffs amended their petition, joining them as parties defendant.
The defendants filed their demurrers to the petition as amended. The court sustained general demurrers numbered 1 and 2. The plaintiffs filed their bill of exceptions in the Georgia Supreme Court, assigning as error the judgment of the court sustaining the general demurrers. The Supreme Court held the question of injunction to be moot because the contract had been fully performed and transferred the case to this court. Trainer v. City of Covington, 220 Ga. 228 ( 138 S.E.2d 170).