Opinion
35923, 35926.
DECIDED JANUARY 27, 1956. REHEARING DENIED FEBRUARY 21, 1956.
Declaratory judgment. Before Judge McWhorter. Chatham Superior Court. August 2, 1955.
Spence M. Grayson, for Alma Corporation.
Stephens Gignilliat, Bright McLamb, for First Federal Savings Loan Assn.
Oliver, Davis Maner, for Savannah Theatres Co.
The petition failed to set forth a cause of action for a declaratory judgment, and the trial court erred in overruling the defendants' general demurrers thereto.
DECIDED JANUARY 27, 1956 — REHEARING DENIED FEBRUARY 21, 1956.
In May, 1945, the Savannah Theatres Company leased from Lizzie Carson Rice certain described real estate in Savannah, Georgia, for a period of sixteen years beginning June 1, 1945. The lease provided that after the first six years the lessor should receive, in addition to a fixed amount of rent, a percentage of the gross receipts from the premises over and above a specified amount, after certain taxes were deducted. After the death of the lessor, The First Federal Savings Loan Association, of Savannah, Georgia (the plaintiff here), purchased the property from her estate and on the same date (June 4, 1953) purchased all the lessor's rights in the lease. Soon after the lease was executed in 1945, the lessee, Savannah Theatres Company, moved its office from a described part of the leased property and subleased this part of the property to Mose Portman, Inc., at a fixed rental. At a later date the defendant, Alma Corporation, took over the premises as assignee of the defendant, Savannah Theatres Company. The contention of the plaintiff is that the gross receipts of the business operated by the subtenant, Mose Portman, Inc., should be included as a part of the gross receipts from the premises, while the defendants, Savannah Theatres Company and the Alma Corporation, contend that the term "gross receipts," for reasons alleged in the petition, includes only the gross receipts from the sale of theatre admission tickets, less certain taxes. The petition after alleging that an actual controversy exists between it and the defendants, prays for a declaratory judgment declaring that it is entitled to accountings for each of the fiscal periods which had ended after the first six years showing the gross receipts from the premises including the gross receipts from the business conducted by the subtenant, Mose Portman, Inc., that it is entitled to the percentage of the gross receipts over and above the percentage of the amount specified in the lease plus interest from the end of each fiscal period, that the past failure of the lessor to so account to the plaintiff in accordance with a demand made on May 5, 1954, be declared a breach of the contract and that the court declare that, upon the plaintiff giving the defendants the notice required in the lease, after a default in the rent payments, the plaintiff is entitled to possession of the property.
The defendant, Savannah Theatres Company, filed a special plea that no process was attached to the petition, and therefore the court was without jurisdiction of it. The defendants, Savannah Theatres Company and Alma Corporation, both filed general demurrers alleging that the petition did not set forth a cause of action for a declaratory judgment. The special plea filed by the defendant, Savannah Theatres Company, and the general demurrers filed by these defendants were overruled. After the case was heard the trial court rendered its judgment substantially as prayed for by the plaintiff.
The defendant Savannah Theatres Company and the defendant Alma Corporation filed their separate bills of exception complaining of the judgments adverse to them.
"`While our declaratory-judgment statute itself says that it should be liberally construed, it manifestly was never intended to be applicable to every occasion or question arising from any justifiable controversy, since the statute does not take the place of existing remedies. It therefore follows that where there exists a remedy, either in law or in equity, a petition for declaratory judgment will lie only when there be some fact or circumstances which necessitate a determination of disputes, not merely for the purpose of enforcing accrued rights, but in order to guide and protect the petitioner from uncertainty and insecurity with respect to the propriety of some future act or conduct which is properly incident to his alleged rights, and which future action without such direction might reasonably jeopardize his interest. Shippen v. Folsom, 200 Ga. 58 ( 35 S.E.2d 915); Clein v. Kaplan, 201 Ga. 396 ( 40 S.E.2d 133); 1 C. J. S. 1027, § 18; 16 Am. Jur. 280, 286, §§ 7 and 13.' Mayor c. of Athens v. Gerdine, 202 Ga. 197 ( 42 S.E.2d 567). See also Georgia Marble Co. v. Tucker, 202 Ga. 390 ( 43 S.E.2d 245)." Sumner v. Davis, 211 Ga. 702 (1) ( 88 S.E.2d 392).
In the present case the allegations of the petition show that there is an actual controversy between the parties; however, the allegations do not show that the petitioner is without an adequate remedy at law or equity, nor are there any facts or circumstances alleged showing that a declaration of the plaintiff's rights is required in order to protect it from insecurity in taking some future action, which if taken without direction might jeopardize its interest. The prayers of the petition amount to no more than prayers that the contract be declared breached, how it was breached, and with the giving of proper notice, (as provided for in the lease), that the petitioner be declared to be entitled to possession of the property covered by the lease. Although the alleged breach of the lease contract may be a continuing breach the plaintiff's right of action for the breach has already accrued and whatever the rights of the parties are they existed at the time the petition was filed. See Peoples v. Bass, 93 Ga. App. 71 ( 90 S.E.2d 926).
It is contended that Felton v. Chandler, 75 Ga. App. 354 ( 43 S.E.2d 742), controls the present case. That case is distinguishable from the case we have under consideration here in that it does not appear on the face of the Felton petition that the plaintiff had an adequate and complete remedy without risk as to future action, whereas in the case at bar the petition shows on its face that the plaintiff has such adequate and complete remedy. By appropriate action, which of course would not include dispossessory and distraint proceedings, the plaintiff in the trial court could have had all of his accrued rights determined and at the same time his future rights, if any, would be fixed.
Accordingly, in the present case where the rights of the parties have already accrued, and it does not appear that the plaintiff is without an adequate remedy at law or equity, and where no facts or circumstances are alleged showing that a declaration of the plaintiff's rights is needed in order to protect it from taking some future action, which if taken without direction might reasonably jeopardize its interest, it is not a proper case for a declaratory judgment, and the trial court erred in overruling the general demurrers of the defendants, Savannah Theatres Company and Alma Corporation, based on this ground. In view of the above ruling it becomes unnecessary to pass upon the other assignments of error since the petition must be dismissed without prejudice to any future action by the plaintiff to enforce its alleged accrued rights under the lease, if it should desire to bring one. See Tucker v. American Surety Co., 206 Ga. 533, 538 ( 57 S.E.2d 662); City of Summerville v. Sellers, 82 Ga. App. 361 ( 61 S.E.2d 160).
Judgment reversed in both cases. Felton, C. J., and Quillian, J., concur.