Kent v. BARRETT OIL COMPANY, INC.

217 Ga. 750 (1962)

125 S.E.2d 59

KENT v. BARRETT OIL COMPANY, INC. et al.

21577.

Supreme Court of Georgia.

Argued March 12, 1962.

Decided April 5, 1962.

Aaron Kravitch, for plaintiff in error.

Brannen, Clark & Hester, Connerat, Dunn, Hunter, Cubbedge & Houlihan, contra.

ALMAND, Justice.

The exception here is to an order sustaining demurrers to the amended petition, seeking legal and equitable relief, the effect of such orders being to dismiss Standard Oil Company as a party defendant and to dismiss the petition against Barrett Oil Company, Inc.

A. D. Kent filed suit against Barrett Oil Company, Inc., and Standard Oil Company of Kentucky, as joint defendants, seeking a temporary and permanent injunction against both defendants, removal of their property from the premises owned by the plaintiff, damages for trespass and unlawful possession, and a declaratory judgment.

*751 1. The petition as originally filed sought relief by way of a declaratory judgment to adjudicate the rights of the parties. A demurrer was filed which, among other things, raised the question as to whether the declaratory-judgment procedure was the proper one under the facts stated in the petition. In the plaintiff's final amendment to avoid having his petition dismissed, the prayer for a declaratory judgment was stricken. The plaintiff by amending his petition to meet the ruling of the trial court is now estopped to question the correctness thereof. The question as to whether declaratory judgment is the proper procedure is, therefore, moot since such prayer was stricken from the petition. See Glover v. Savannah, Fla. & W. Ry. Co., 107 Ga. 34 (3) (32 SE 876); Rivers v. Key, 189 Ga. 832 (1) (7 SE2d 732).

2. The plaintiff in error's brief was directed solely to the declaratory-judgment question and not to other questions presented by the rulings of the lower court. The other contentions not having been argued in this court either by brief or orally will be considered as abandoned. Wood v. Pool, 211 Ga. 789 (2) (89 SE2d 192).

Judgment affirmed. All the Justices concur.