Supreme Court of Georgia, 1955

Atkinson v. Drake

Atkinson v. Drake
Supreme Court of Georgia · Decided October 11, 1955 · Duckworth
212 Ga. 26; 89 S.E.2d 888; 1955 Ga. LEXIS 529

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.

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