Atkinson v. Drake

Supreme Court of Georgia
Atkinson v. Drake, 212 Ga. 26 (Ga. 1955)
89 S.E.2d 888; 1955 Ga. LEXIS 529
Duckworth

Atkinson v. Drake

Opinion of the Court

Duckworth, Chief Justice.

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. 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.

Reference

Full Case Name
Atkinson v. Drake, Executors
Cited By
2 cases
Status
Published