Opinion
19146.
SUBMITTED NOVEMBER 14, 1955.
DECIDED JANUARY 9, 1956.
Declaratory judgment. Before Judge Crow. Dougherty Superior Court. April 29, 1955.
Colquitt H. Odom, for plaintiffs in error.
Peacock, Perry, Kelley Walters, contra.
This case falls within the jurisdiction of the Court of Appeals, since it is one for a declaratory judgment to determine the rights and liabilities of certain parties under a liability-insurance policy, and the prayer for injunctive relief is in effect only an application for a stay of proceedings until the rights in actual controversy can be declared; and the lower court having amended the final order by striking therefrom the permanent injunction granted, this case is not an equitable one within the meaning of the Constitution fixing the jurisdiction of this court.
SUBMITTED NOVEMBER 14, 1955 — DECIDED JANUARY 9, 1956.
Hardware Mutual Insurance Company brought this action against L. A. Paige and Wade Griffin in Dougherty Superior Court for a declaratory judgment to determine the rights and liabilities of Paige and the plaintiff under a policy of insurance issued by the company to cover the garage of Paige, and to restrain and enjoin the prosecution of a suit for damages in the City Court of Albany, brought by Griffin against Paige for personal injury, pending a determination of the rights in this case. Demurrers and an answer were filed, and after the demurrers were overruled, the court, without the intervention of a jury, decreed that there was no liability on behalf of the plaintiff for the injury received by Griffin, since he was an employee of Paige; and also permanently enjoined Griffin from further prosecution of his suit for damages, but this injunctive feature was later stricken from the final order.
The exceptions here are to this final judgment as amended and to the order overruling the demurrers. The writ of error was duly transmitted to the Court of Appeals for the correction of the alleged errors, and that court, apparently because of the injunctive features, transferred the same to this court.
While in Mensinger v. Standard Acc. Ins. Co., 202 Ga. 258 ( 42 S.E.2d 628), the status of the parties and the relief sought was, in all substantial respects, identical with the facts here in so far as any equitable features are concerned, yet no specific ruling was there invoked, and it is only by presumption that it could be said we there ruled that we had jurisdiction of the writ of error. In such circumstances, that case, while being a physical precedent, is nevertheless no controlling authority to the effect that this court has jurisdiction of similar writs of error as in the instant case. Albany Federal Savings c. Assn. v. Henderson, 198 Ga. 116, 134 ( 31 S.E.2d 20); United States v. Mitchell, 271 U.S. 9 ( 46 Sup. Ct. 418, 70 L. ed. 799); Schram v. Robertson, 111 F.2d 722.
The declaratory-judgments act (Ga. L. 1945, p. 137) was new to this court and our decisions were somewhat conflicting and seldom by the concurrence of all Justices. This was in large part due to a reluctance of this court to allow all cases under that statute to be brought within the jurisdiction of the Supreme Court by merely praying, as the act so provides, for an injunctive stay and maintenance of the status quo, pending a declaration of rights thereunder. Consequently, this court squarely and seriously faced and considered the jurisdictional question in Milwaukee Mechanics Ins. Co. v. Davis, 204 Ga. 67 ( 48 S.E.2d 876); Findley v. City of Vidalia, 204 Ga. 279 ( 49 S.E.2d 658); Georgia Cas. c. Co. v. Turner, 208 Ga. 782 ( 60 S.E.2d 771). The substance of those rulings is that a case otherwise outside the jurisdiction of the Supreme Court can not be brought within that jurisdiction by a prayer for or the grant of a restraining order to maintain the status quo until the rights are declared. In Milwaukee Mechanics Ins. Co. v. Davis, supra, it was contended that, since the only relief sought against the plaintiffs in the law case was that they be enjoined from prosecuting it until the rights were declared, it was as to them equity and within the jurisdiction of the Supreme Court, but this court rejected that contention. Similar facts in the instant case are controlled by that decision. Therefore this writ of error must be transferred to the Court of Appeals where it was originally sent.
Transferred to the Court of Appeals. All the Justices concur.