DocketNumber: 52681
Citation Numbers: 140 Ga. App. 78
Judges: Deen
Filed Date: 10/5/1976
Status: Precedential
Modified Date: 1/12/2023
1. The first issue, to which several enumerations of error are addressed, is whether the superior court had jurisdiction to issue a final order of distribution after it had issued a final order granting declaratory relief. The appellant argues that since the trial judge originally granted only a declaratory judgment, he was barred from subsequently granting the further plenary relief the appellee had prayed for. Code Ann. § 110-1102 (a) specifically provides that a petition for declaratory relief also may include prayers for further legal or equitable relief, "and the failure of such petition to state a cause of action for declaratory relief shall not affect the right of such party to any other relief, legal or equitable, to which he may be entitled.” It is the clear mandate of Code Ann. § 110-1101 that superior courts have the power to grant declaratory judgments "whether or not further relief is or could be prayed, and such declaration shall have the force and effect of a final judgment or decree and be reviewable as such.” (Emphasis supplied.) The question for decision is whether when a petition is brought seeking both declaratory and further relief and the superior court grants a declaratory judgment but withholds judgment on granting further relief and the declaratory judgment becomes final, reviewable and affirmed can the court then grant the plenary relief originally prayed for.
The appellee was clearly entitled to seek declaratory relief notwithstanding the fact that she had any other adequate legal or equitable remedies. Code Ann. § 110-1101 (c). She was also clearly entitled to pursue such other relief, in addition to declaratory judgment, in the same petition. Code Ann. § 110-1102 (a). The appellee would not be entitled to "further plenary relief,” however, if such relief were dependent upon the resolution of the declaratory judgment issue. Code Ann. § 110-1102 (a) "relates to the right to relief which is independent of declaratory judgment, not that specifically bottomed on the declaratory judgment. . .” Gay v. Hunt, 221 Ga. 841, 846 (148 SE2d 310). The appellee petitioned for a declaratory judgment that she was entitled to a portion of the condemnation proceeds; if she were so entitled, she would be afforded "further plenary relief’ but if she were
2. The appellant objects to the court’s application of Code Ann. § 36-616a in resolution of the conflicting claims. That statute provides: "When the condemning body has paid into the registry of the court, for the use and benefit of and subject to the demands of the condemnees, the amount of money provided for in the order of the special master, the effect of such payment into the registry of the court shall be the same as if paid to the condemnees directly, and provided that the clerk shall pay out such money to such condemnees, or their personal representatives, upon proper proof submitted to him as to the quantity of such interest and, where there are conflicting claims, he may require such conflicting parties to establish their claims before the court as is provided by law in other similar matters.”
The thrust of the appellant’s argument is that there were no condemnation funds held in the registry of any court and that Code Ann. § 36-616a is therefore in
Code § 36-1113 provides in part that: "If any person, after judgment of condemnation, shall desire to come in and be heard on any claim to the fund or to any interest therein, he shall be allowed to do so.” This court has already held: "It is immaterial that the grantee, Mrs. Grant, did not assert before the special master any claim to the condemnation proceeds and that such proceeds were distributed to the grantor under the special master’s award (which was superseded by a compromise settlement effected after the grantor’s death)... Her claim to the proceeds of her land was tacitly recognized by the appellant bank (administrator of the grantor’s estate) by serving her as a party at interest to the special master proceedings, and expressly, subsequent to the grantor’s death, by stipulating with her that it would hold the condemnation proceeds until the parties’ rights were determined in a declaratory judgment action filed by the appellant in 1971 (which was finally adjudicated against it and in the appellee’s favor . . .).” Fourth Nat. Bank v. Grant, 135 Ga. App. 798, 799, supra. It is therefore abundantly clear that there was a conflicting claim to
3. Careful study of the record in this case compels us to hold that there was sufficient evidence to support the allocation of condemnation proceeds as made by the judge and this in the amount which was awarded. Fourth Nat. Bank v. Grant, 135 Ga. App. 798, 799, supra.
Judgment affirmed.