Mock v. Darby

109 Ga. App. 620 (1964)

137 S.E.2d 81

MOCK v. DARBY.

40636.

Court of Appeals of Georgia.

Decided April 24, 1964.

Neville & Neville, for plaintiff in error.

Allen & Edenfield, contra.

EBERHARDT, Judge.

The only exception in this declaratory judgment case is to the overruling of the general demurrer to the petition. "Whether or not the plaintiff is entitled to a declaratory judgment upon a hearing, is not dependent upon a determination of whether or not his contention in the controversy be a correct one. It may be found untenable upon the hearing, but he will not for that reason be sent from court, but is entitled to have the court, upon evidence and not upon the hearing of a general demurrer, declare his rights or lack of any right in the premises. To withstand a general demurrer it is only necessary that the plaintiff show an existing justiciable controversy, as provided by the Declaratory Judgment Act. It is not necessary that the petition go farther and show that the plaintiff's contention is correct." Georgia Cas. &c. Co. v. Turner, 86 Ga. App. *621 418, 422 (71 SE2d 773). Accord: Parks v. Jones, 88 Ga. App. 188 (76 SE2d 449); Darling v. Jones, 88 Ga. App. 812, 815 (78 SE2d 94); Griffin v. Hardware Mut. Ins. Co., 93 Ga. App. 801, 803 (1) (92 SE2d 871); Buffington v. New Hampshire Fire Ins. Co., 104 Ga. App. 139, 141 (1) (121 SE2d 270). See St. Paul Fire &c. Co. v. Johnson, 216 Ga. 437 (117 SE2d 459). The petition here presented a justiciable controversy and the general demurrer was properly overruled.

Judgment affirmed. Bell, P. J., and Jordan, J., concur.