Summary
holding that a complainant asserting declaratory judgment claims must base those claims on factual allegations that exist and do not simply "anticipate" a controversy
Summary of this case from Protopas v. Standard Fire Ins. Co.Opinion
1 Div. 43.
February 23, 1939. Rehearing Denied March 30, 1939.
Appeal from Circuit Court, Mobile County; Jas. H. Webb, Judge.
Ball Ball, of Montgomery, for appellant.
There is a justiciable controversy over existing legal rights alleged in the bill. Houston County v. Martin, 232 Ala. 511, 169 So. 13; Tuscaloosa County v. Shamblin, 233 Ala. 6, 169 So. 234; Scott v. Ala. State Bridge Corp. 233 Ala. 12, 169 So. 273; Teal v. Mixon, 233 Ala. 23, 25, 169 So. 477; Borchard, Decl.Judg. pp. 5, 16, 18, 19, 25, 26, 35, 39, 311. The declaratory judgment act should be construed liberally, and it provides for declaration of rights under and by construction of a statute. Gen.Acts 1935, p. 777.
Wm. V. McDermott, of Mobile, for appellees.
To sustain a bill for declaratory judgment there must appear an actual justiciable controversy. Gen.Acts 1935, p. 777; Jefferson County v. Johnson, 232 Ala. 406, 168 So. 450; Teal v. Mixon, 233 Ala. 23, 169 So. 477; Theater Co. v. Manning, 236 Ala. 670, 185 So. 171.
The bill, filed by appellant, seeks relief under the Declaratory Judgment Act. General Acts 1935, p. 777.
The averments of the bill, designed to show a justiciable controversy, are embodied in paragraphs 7 and 8, which are here reproduced:
"Complainant further avers that on, to-wit, June 22, 1938, William V. McDermott obtained a judgment in the Circuit Court of Mobile County, Alabama, against Theatre Company, a corporation, for $7,500.00. Complainant is informed and believes and on such information and belief represents that said judgment was obtained without defense by the defendant and by fraud or collusion between the parties or by confession of the debtor. Clara McDermott obtained a judgment against Theatre Company, a corporation, in the Circuit Court of Mobile County, Alabama, on May 20, 1938, for $35,867.69 and said Complainant is informed and believes and upon such information and belief represents that said judgment was obtained without defense by the defendant and by fraud or collusion between the parties or by confession of the debtor.
"Complainant is informed and believes and upon such information and belief avers that it is the purpose of each or both of said Respondents to insist that each or both of them have the right to redeem said property from said foreclosure sale hereinabove set forth but neither of them has ever tendered or offered to pay to this Complainant any sum of money for the purpose of such redemption nor has either of them brought suit to redeem said property from said foreclosure sale and Complainant is advised by counsel and so charges that under the laws of Alabama as they now exist neither of said Respondents has any right to redeem said property from said foreclosure sale."
These averments clearly do not show such controversy. At most they merely show that complainants anticipate that such controversy may arise. This is not sufficient to invite a judicial declaration of right. Theater Company v. Manning et al., 236 Ala. 670, 185 So. 171; Jefferson County v. Johnson, 232 Ala. 406, 168 So. 450.
The decree of the Circuit Court sustaining the demurrer of the defendants is free from error, and is affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.