Saenger Theatres Corporation v. McDermott

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.