Consolidated Quarries Corp. v. Davidson , 79 Ga. App. 248 ( 1949 )

Where a petition for a declaratory judgment is filed for the sole purpose of determining the rights and liabilities of the parties to a contested instrument, intended as a contract, in order that the parties might know whether or not to comply with the terms thereof, and the date fixed in the instrument for its expiration arrives before the motion for a new trial on the merits of the case is heard and before the case is appealed to this court, the questions in the case have become moot insofar as relief under the Declaratory Judgment Act is concerned, and the writ of error will be dismissed without prejudice to the parties as to all questions decided by the trial court and jury.

DECIDED APRIL 13, 1949. REHEARING DENIED MAY 13, 1949. On September 21, 1945, Consolidated Quarries Corporation instituted an action under the Georgia Declaratory Judgment Act against Stone Mountain Grit Company, a partnership, seeking a declaration of its rights under a contract entered into with the defendant on August 20, 1943. The contract provided in substance that the plaintiff would supply the defendant with its total requirement of crushed granite stone for its use or resale until September 1, 1948, at which time the contract was to expire. The parties thereto complied with the contract until April 20, 1944, when the defendant proposed a new contract to succeed the one of August 20, 1943. No agreement was reached by the parties as to the proposed new contract, and they continued to operate under the terms of the contract of August 20, 1943, until April 30, 1945, when the plaintiff wrote the defendant denying liability under the contract of August 20, 1943, on the ground that said contract was invalid and unenforceable.

After several amendments to the petition and answer, the case finally came on for trial, and on September 5, 1947, the jury returned special verdicts in the nature of interrogatives and answers for the defendant, which, in effect, held that the contract of August 20, 1943, was a valid contract and that the plaintiff was thereby obligated under its terms in certain particulars.

The plaintiff assigns error on the (1) overruling of its general demurrer to the defendant's answer, (2) overruling of its motion for a directed verdict, (3) overruling of its motion for judgment notwithstanding the verdicts of the jury, (4) overruling of its motion for a new trial. The sole purpose of the present action is to have legal rights declared for the purpose of guiding future conduct. At the time this action was instituted in the trial court, it presented a question that could properly be adjudicated under the Declaratory Judgment Act. The question now presented is, whether or not, at the time the final judgment was rendered and this case appealed to this court, there still existed a real or actual controversy within the purview of the act. The Georgia Declaratory Judgment Act (Ga. L. 1945, p. 137) provides: "In cases of actual controversy the respective Superior Courts of the State of Georgia shall have power upon petition, or other appropriate pleading, to declare rights and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed. . . Section 9. The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding."

We are of the opinion that, prior to the final judgment and appeal of this case, there was no longer existing a real or actual controversy as contemplated by the act. By its express terms, the contract expired September 1, 1948. The record shows that the judgment overruling the plaintiff's motion for a new trial was rendered on December 1, 1948. Since the plaintiff is seeking to have its present rights determined under this contract, and since the contract expired by its own terms three months prior to final adjudication in the trial court, the questions before us have became moot and abstract insofar as relief by declaratory judgment is concerned. If we should declare the rights of the plaintiff under this contract, we would be answering an academic, hypothetical question, because the contract sought to be construed is no longer of force and no issue is presented as to past action and liability therefor under the general law. Dayton Street Transit Company v. Dayton Power Light Co., 57 Ohio App. 299 (13 N.E.2d, 923). "No proceeding lies under the declaratory judgment acts to obtain a judgment which is merely advisory or which merely answers a moot or abstract question. 16 Am. Jur. 282, § 9." Shippen v. Folsom,200 Ga. 58 (4), (35 S.E.2d 915); Clein v. Kaplan,201 Ga. 396 (40 S.E.2d 133). To give the plaintiff answers now could not aid in determination of future conduct under the contract. Professor Borchard in his text on Declaratory Judgments (2d ed.), p. 84, in regard to subsequent changing circumstance rendering a case moot, states: "The issue has ceased to be live or practical, because the facts have changed, either by settlement of the controversy or by alteration in the circumstances of the parties or subject-matter, so as to make the judgment not decisive or controlling of actual and contested rights, but a pronouncement having academic interest only." Judge MacIntyre in his very able opinion inFelton v. Chandler, 75 Ga. App. 354 (43 S.E.2d 742), states: "It may be here noted that if an action for a declaration raises issues which are fictitious, colorable, hypothetical, abstract, academic, or dead, and hence moot, the Georgia statute is not applicable, and the action must be dismissed as decisively as would be any other action presenting the same non-justiciable issues."

Furthermore, it is expressly stated in section 9 of the act that a court may refuse to render a declaratory judgment or decree which, if rendered, would not terminate the uncertainty or controversy giving rise to the proceeding. In this case, if this court should construe the contract to be valid and binding upon the plaintiff, then further litigation would be required to recover for breach of the contract. It is a basic rule of declaratory-judgment law that it is the duty of the court to make a full and complete declaration, and where it will be necessary to bring another action or proceeding to settle the controversy, a declaratory judgment will not be granted. Felton v.Chandler, supra; Anderson on Declaratory Judgments, Ch. 5, p. 175. Also, it is not the purpose of the act to declare what would be a defense to a possible action for damages, where the declaration would not also serve as a guide for future conduct.

For the foregoing reasons this court is without jurisdiction and the writ of error is dismissed without prejudice as to any question adjudicated below.

Sutton, C. J., concurs. Parker, J., concurs, in thejudgment.