Kidd v. Mayor of Milledgeville

Hawkins, Justice. This case was transferred to this court by the Court of Appeals. “ 'Cases respecting title to land,’ as that term is used in the Constitution for the purpose of defining the jurisdiction of this court, refer to and mean actions at law, such as ejectment and statutory substitutes, in which the plaintiff asserts a presently enforceable legal title against the possession of the defendant for the purpose of recovering the land.” Bond v. Ray, 207 Ga. 559, 561 (63 S. E. 2d 399). The present proceeding is not an ejectment suit, nor a statutory substitute, but is one which seeks a declaration by the court of the rights of the plaintiff municipality under its charter to remove obstructions from the right of way of an alleged public street. Since the relief provided for under the Declaratory Judgments Act (Ga. L. 1945, p. 137) is not equitable per se (Felton v. Chandler, 201 Ga. 347, 39 S. E. 2d 654; Milwaukee Mechanics’ Ins. Co. v. Davis, 204 Ga. 67, 48 S. E. 2d 876), and where, as here, there is an absence of appropriate pleadings and prayers for specific equitable relief, and the allegations and prayers of the petition are not such as otherwise make a case which comes within the jurisdiction of this court, it follows that the Court of Appeals has jurisdiction of the writ of error, and it must be and is returned to the Court of Appeals. See Peoples v. Bass, 211 Ga. 802 (89 S. E. 2d 171); Lewis v. Fry, 194 Ga. 842 (22 S. E. 2d 817); Rad [525] cliffe v. Jones, 174 Ga. 324 (162 S. E. 679); Grobli v. Foreman, 171 Ga. 712 (156 S. E. 622). Submitted September 9, 1957 Decided October 11, 1957. Wilbur B. Nall, W. George Thomas, for plaintiff in error. Robert H. Herndon, contra. Returned to the Court of Appeals. All the Justices concur.