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Atkinson v. Drake et al., Executors

Supreme Court of Georgia1955-10-11No. 19065
212 Ga. 26

Authorities cited

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Opinion

majority opinion

Duckworth, Chief Justice.

Where the only equitable relief sought was an injunction against the obstruction or closing of a private way after the obstruction had been placed therein, the petition was subject to general demurrer, since there was an available remedy at law under Code §83-119. Haney v. Sheppard, 207 Ga. 158 (60 S. E. 2d 453). Hence the amendment thereto, alleging that the plaintiff had removed the obstructions and the defendant “threatens to re-erect and unless restrained will re-erect and . . . close the driveway,” fails to breathe life into the lifeless petition no matter how good a cause of action the amended petition might now allege as to the alleged threats. See Code §§ 81-1302, 81-1303. It follows that the court erred in overruling the general demurrer to the petition as amended.

Judgment reversed.

All the Justices concur.