Walter Houston Anderson.

Actions for declaratory judgments : a treatise on the pleading, practice, and trial of an action for a declaratory judgment, from its inception to its conclusion, with forms online

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Online LibraryWalter Houston AndersonActions for declaratory judgments : a treatise on the pleading, practice, and trial of an action for a declaratory judgment, from its inception to its conclusion, with forms → online text (page 22 of 112)
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lief. The Declaratory Judgment
Act provides for the granting of
further relief in addition to the
declaration of rights wherever
necessary or proper."

Automotive Equipment v. Trico
Products Corporation, 11 F.Supp.
292. In the last-cited case the
court said, "In the Declaratory
Judgment Act, no judgment for
unfair competition can be de-
clared. It is possible that an in-
junction may be granted follow-
ing a judgment. 'Further relief
based on a declaratory judgment
or decree may be granted when-
ever necessary or proper.* Section
274d (2), Judicial Code, 28 U.S.C.
§ 400 (2), 28 U.S.C.A. § 400 (2).
This provision may go to the ex-
tent of the issuance of an injunc-
tion but not to the extent to per-
mit proof of damages." In this
respect the case seems to be con-

trary to Bcatty v. Chicago, B. &
Q. R. Co., 49 Wyo. 22, 52 P.2d
404; and Washington-Detroit
Theater Co. v. Moore, 249 Mich.
673, 229 N.W. 618, 68 A.L.R. 105.
The language of the federal stat-
ute in this respect is practically
the same as the provision con-
tained in the Uniform Act.
Eng. — Royal Insurance Company
Limited v. Mylius, 38 C.L.R. 477

Ala. — Berman v. Wreck-A-Pair
Bldg. Co., 234 Ala. 293, 175 So.

Conn. — New Haven Water Co. v.
City of New Haven, 131 Conn.
456, 40 A.2d 763.
Idaho^Sweeney v. American Nat.
Bank, 62 Idaho 544, 115 P.2d 109.
Ind. — Fischer v. Secertary for
India in Council L.R. 26, India
App. 16.

Iowa— Minot v. Pelletier Co., 207
Iowa 505, 223 N.W. 182.
Mich.— Washington-Detroit The-
ater Co. V. Moore, 249 Mich. 673,
229 N.W. 618, 68 A.L.R. 105,
wherein the court said, "Whether
consequential relief be granted
upon the original or a subsequent
petition, and whether an order of
enforcement be had of course or
on application, go merely to the
practice, not to the power of the
court. In many equity proceed-
ings the decree is merely declar-
atory and enforcement is had
only on subsequent application
for an order in contempt or other-
wise. Moreover, 'Every court has
inherent power to enforce its
judgments and decrees, and to
make such orders and issue such
process as may be necessary to
render them effective, and this
power is not affected by the fact
that the decree is final.' 34 C.J.

"So where the Court has the au-
thority to grant the relief neces-


Digitized by


§ 451


Ch. 7

While it is true that the declaratory judgment statute does not
authorize the retention by the court of any jurisdiction after enter-
ing a declaratory judgment, yet it does not follow that a court may
not retain jurisdiction to enter such subsequent orders that will
make effective the declaratory judgment that has been granted.
The power of the court of equity to retain jurisdiction to give
complete and effectual relief is well established, and it follows
without any serious controversy that the court may make such
further orders to give effect to a declaratory judgment as shall seem
meet and proper.**

The supplemental relief may be any relief necessary to make
effective the declaratory judgment, even though it consists in the
granting of a money judgment in the case, after the rendition of
a declaratory decree.'

It would seem that the sounder rule is that the supplemental or
additional relief may be granted in the same action, or cause, and
that the court, upon a sufficient pleading having been filed there-
for, so long as the court avoids rendering a judgment deciding
merely a moot, fictitious, or colorable question, it may grant any
relief, whether declaratory or executory, to carry into effect its
declaratory order, judgment or decree.* It seems that the sup-

sary to end the controversy and
to enforce its judgment by appro-
priate means where compulsion
is necessary, it would seem suffi-
cient. No reasonable test of ju-
dicial power can demand that the
judgment must carry unwar-
ranted or unnecessary relief or
process of enforcement."
Pa.— Sloan v. Longcope, 288 Pa.

196, 135 A. 717.
Wis.— Belanger v. Loc. Div. 1128
Amal. Assn. of Street & Elec. Ry.
& Mtr. Coach Emp. of Am., 256
Wis. 274, 40 N.W.2d 504.

State V. Adelmeyer, 221 Wis.
246, 265 N.W. 838.

Morris V. Ellis, 221 Wis. 307,
266 N.W. 921, wherein the court
said, "The intimation that the
supplemental relief contemplated
by the statute is limited to further

declaratory relief cannot be sus-
tained. It includes any relief es-
sential to making effective the de-
claratory judgment entered by the

W3ro. - Beatty v. Chicago, B. &
Q. R. Co., 49 Wyo. 22, 52 P.2d
99. Wis.- Belanger v. Loc. Div. 1128
of Amal. Assn. of Street and Elec.
Ry. & Motor Coach Emp. of Am.,

1. U.S.— Texasteel Manuf. Co. v.
Seaboard Surety Co., 158 F.2d 90,
CCA Tex., see also 67 S.Ct. 1350,
331 U.S. 828, 869, 91 L.Ed. 1843.

2. Colo. — Mountain States Beet
Growers' Marketing Ass'n v.
Wagner, 79 Colo. 604, 247 P. 804.
D.C.— Hill V. Hawes, 144 F.2d
511, 79 U.S.App.D.C. 168.


Digitized by



plemental relief may be granted in a declaratory action by an
amendment of the complaint.'

Where the issues of the validity and infringement of a patent
were pleaded and determined in a declaratory action, the federal
district court had jurisdiction to grant further and necessary or
proper relief, and the federal district court on the defendant's pe-
tition did not err in ordering an injunction and accounting against
the plaintiff who was given ample opportunity to show cause why
such relief should not be granted.* And, it seems, moreover,
that the filing of a pleading is not indispensably necessary, if the
court retains or reserves the right in the declaratory judgment to
make such further orders as may be necessary to effectuate the
judgment, it may do so, although no petition therefor has been
filed." However, it has been held that supplemental relief may
be granted in a declaratory action after a judgment has been pro-
nounced, only upon an appropriate application therefor.* How-
ever, the subsequent relief in a declaratory action may be obtained
by an independent action, after a declaratory judgment has been
pronounced. It would be unreasonable to hold that a court had
jurisdiction to determine the rights of the parties, but the success-
ful party had no remedy to enforce such rights after they had been
determined. No such unjust results can be read into the declara-
tory judgment statute."' Undoubtedly, the general rule is that in
a declaratory judgment proceeding coercive relief is not as a
general rule sought, but it may be obtained, that is, rights of the
parties may not only be determined but may be enforced in the
one action or as we have seen by an independent action subsequent
thereto.* In other words, the remedy for the enforcement of the

3. Conn. — Connecticut Savings Bank
V. First Nat'l Bank & Trust Co.,
133 Conn. 403, 51 A.2d 907. It
is submitted, however, that this
would be an awkward and un-
wieldy manner of handling the
situation. It would be better and
comport with orderly procedure
to present a petition or motion in
the declaratory proceeding, after
the declaration had been entered.

4. U.S. — Petersime Incubator Co. v.
Bundy Incubator Co., CCA.

Ohio, 135 F.2d 580, appeal dis-
missed 64 S.Ct. 24, 320 U.S. 805,
88 L.Ed 487.

5. Wis.— Morris v. Ellis, 221 Wis.
307, 266 N.W. 921.

6. FUl— Garden Suburbs Golf &
Country Club v. Pruitt, 156 Fla.
825, 24 So.2d 898.

7. Va.— Winborn v. Doyle, 190 Va.
867, 59 S.E.2d 90.

8. Utah— Gray v. Defa, 103 Utah
339, 135 P.2d 251, 155 A.L.R. 495.
Va. — Yukon Pocahontas Coal Co.


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rights determined by a declaratory judgment proceeding prescribed
by the declaratory statute are not exclusive and there is nothing
therein that militates against the maintenance of an independent
action to enforce the declaration made .•

The declaratory judgment statute providing that further relief
based on a declaratory judgment order, or decree, may be granted
whenever necessary or proper, did not warrant the allowance of in-
terest upon the claim, or claims, involved in the action as supple-
mentary relief, where plaintiff made no prayer therefor, and the
only defense made by the defendant was the filing of general and
special demurrers.'®

A motion picture actress was not entitled to an injunction re-
straining the producer-employer from enforcing a contract for her
services after the expiration of the statutory maximum life of
the contract, in the absence of anything in the record to justify
a belief that the producer would not abide by the court's final de-
claration as to the parties' rights under the contract and a final
decree terminating it, though the producer openly insisted that the
actress was still bound by the contract."

In a suit for declaratory judgment, damages may be granted only
after the entry of such judgment therein.'*

Where it appeared in a declaratory judgment action that the
defendants were entitled to certain tax credits, in an action by
the United States against such defendants, the trial court should
have directed such further proceedings in the action as were just
and necessary for determination of the matter of such tax credits,
and the appellate court held that such determination could properly
have been made, either from evidence presented to the court or
by affidavits and thereby disposing of the issue to the satisfaction
of the court.''

V. Ratliff, 175 Va. 366, 8 S. E.2d 11. CaL— De Haviland v. Warner
303. Bros. Pictures, 67 Cal.App.2d 225,

Winborn v. Doyle, supra. 153 p.2d 983.

,« ^*-~^'"''°?. "i ^^^^'' /"P"*- 12. U.S.-Gold8mith Metal Lath Co.

10. Ky.-Umon L'ght Heat & Power ^ j^.,^^^ g^^^, j^ 53

Co. V. City of Bellevue, 284 Ky.

40S. 144 S.W.2d 1046. l-.bupp. 778.

But see, New Haven Water Co. 13. U.S.— Vokal v. United States, 177

V. City of New Haven, 131 Conn. F.2d 619. It seems the cotirt did
456, 40 A.2d 763.


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Consequential or incidental relief may be obtained in an action
in which declaratory judgment is sought, but the failure to seek
such relief in such action or suit does not constitute a bar to other
proceedings to enforce the rights determined by the judgment,
whether such other proceedings is by petition filed in that cause,
or in a separate and independent actionj^

§ 452. Declaratory Relief May be Joined with Application for
Other Relief

The declaratory judgment proceeding is available, where appro-
priate, whether separately sought or sought in conjunction with
the procuring of an executory judgment or decree. So it is not
at all inconsistent to seek declaratory relief and an adjudication
of the rights of the parties under a lease. It is often that a request
for a declaration is combined with the request for possession of

In short, the operation of the declaratory proceeding may be
invoked to seek either remedial or preventative relief. It may
relate to a right that has either been breached, and therefore
subject to coercive relief, or it may relate to a right yet in dispute
or a status undisturbed, but threatened or in danger. And it is
no objection to the maintenance of the action because it seeks a
declaration with respect to such rights and is combined with an
application for coercive or other relief, so long as it involves an
actual and existing state of facts.**

It seems that it has been held that it may be necessary to join
with an application for declaratory relief, a prayer for some sort
of coercive relief in order to save the proceeding from merely
presenting a moot question, as for example, where the plaintiff's

not consider the question of plead- Md. — Caroline St. Permanent

ing authorizing the granting of Building No. 1 v. Sohn, 178 Md.

further relief, but affirmed that the 434, 13 A.2d 616.

court could and should have Schultz v. Kaplan, 189 Md. 402,

granted the tax credits on pro- 56 A.2d 17.

duction of evidence authorizing it. 16. Idaho — Ayers v. General Hos-

14. Va.— Winborn v. Doyle, 190 Va. pital, dl Idaho 430, 182 P.2d 958.
867, 59 S.E.2d 90. State v. Board of Education,

15. U.S.~Chase National Bank v. 56 Idaho 210, 52 P.2d 141.
Citizens Gas Co., 113 F.2d 217. Md^Schultz v. Kaplan, supra.


Digitized by


§ 453


Ch. 7

declaratory judgment action challenges merely the constitutionality
of a statute and does not seek or assert any affirmative relief or
rights in addition thereto in such action, and where the proceeding
goes no further, then merely a moot question is presented, and the
action will not be entertained.'^ But this would be true only in
cases where plaintiff's pleading failed to show a justiciable dispute
in the matter, as where one unaffected by the statute sought to
assail it.

§ 453. Controversy Terminated by a Declaration of Rights

Where a complaint in an action for a declaration of rights sought
to have an adjudication as to the ownership of certain shares of
stock and the defendant prayed a determination of ownership and
for coercive relief, in such a case a judgment declaring plaintiff's
ownership thereof, and the right to its transfer by defendant, but
in no manner attempting to grant the plaintiff coercive relief other
than to place the right of possession in the plaintiff, sufficiently
terminated the controversy and is within the ambit of the authority
of the Uniform Declaratory Judgments Act.'*

§ 454. Taxation of Costs

Wide latitude with respect to the assessment and taxation of
costs is lodged in the court in a declaratory action, by a specific
provision contained in the Uniform Act.'* While costs are usually
awaided to the successful party in declaratory actions, they may
be taxed against such party and in favor of the losing one.*®

17. Tenn.— Hurlbut v. Town of Look-
out, Tenn.Ch.App., 49 S.W. 301.
This case was decided at a time
before the enactment of the de-
claratory judgment statute, and is
authority only by analogy.

18. Ind. — Berman v. Druck, Ind.App.,
41 N.E.2d 837. This case was
transferred to the Indiana Su-
preme Court, 221 Ind. 241, 47 N.E.
2d 142, 145 A.L.R. 562, which did
not pass on this question in its
superseding opinion.

19. Mich. — Kindy Opticians v. Mich-
igan State Board of Examiners

in Optometry, 291 Mich. 152, 289
N.W. 112, where it was held that
in a suit by a corporation licensed
to conduct the business of a dis-
pensing optician for declaratory
judgment that it was not subject
to a statute governing optome-
trists and for an injunction against
interference with its business
where the trial court's decree for
defendants was reversed, costs
were awarded against an indivi-
dual and Society of Optometrists
that were defendants; but not as
against state officers and Attorney


Digitized by



Where a declaratory proceeding is brought to have adjudged
unconstitutional a statutory enactment, and such statute is sus-
tained with the exception of certain minor phases which were
elided by reason of the severable provisions contained in the act,
the court may tax the plaintiff with the costs.*^ This provision,
however, does not authorize the taxation of attorney's fees in favor
of either party.** It is generally recognized by the English courts
that costs that are allowed in declaratory actions are usually not
as great as in the ordinary action at law or suit in equity.*® The
court undoubtedly has power in this class of cases to grant costs
reduced below those ordinarily taxable.** And even where the
plaintiff is successful and while no costs are allowed to the de-
fendant, the plaintiff may be refused the right to tax costs.*' It
may be stated, as a general rule, that the costs in such proceedings
are taxed largely in the discretion of the court.** It has been
held, however, that where there was a contention between the
parties with respect to the right to a license to erect an apparatus
used in the shooting of migratory water fowls, and a license is
denied both parties, costs of the proceeding both on appeal and
in the trial court will be taxed against the defendant since the
plaintiff was in effect successful.*^ Where a plaintiff does not

General who were defendants. 23. Eng. — Evans v. Levy (1910) 1

Uniform Declaratory Judg- Ch. 452.

ments Act, § 10 provides: "In Jenkins v. Price, (1907), 2 Ch.

any proceeding under this Act 229, 235.

the court may make such award of In re Campbell, (Deceased)

costs as may seem equitable and Peacock v. Ewen (1930) N.Z. 713.

just." In re Gore Borough Council, 29

20. TeniL— Allen v. Folwell, 1 Tenn. N.Z. 192 (1909).

App. 515. 24. Eng.— Grant v. Knaresborough

Mullens v. Mullens, 5 Tenn. Urban District Council (1928) Ch.

App. 235. 310^

25. Eng.— Jenkins v. Price (1907) 2
Ch. 229.

Erwin Billiard Parlor v. Buck-
ner, 156 Tenn. 278, 300 S.W. 565

21. Tenn.— Large v. City of Eliza- Wi«.— Rosenberg v. Village of
bethton, 185 Tenn. 156, 203 S.W. Whitefish Bay, 199 Wis. 214, 225
2<J ^7. N.W. 838.

22. Conn. — West Haven Bank & *•- m* .. o i *^ xt-.«.*^« i^i
rn . i- ^# r, 11.7 i- 26. MaM. — Sylvester v. Newton, 321
Trust Co. V. McCoy, 117 Conn. _- .^^ -^ kj j? oa cqc

489 169 A. 49. ^^^^' ^^^' ^^ ^

Mo.— But, 'see Kingston v. St. 27. Va.-Brumley v. Grimstead, 170

Louis Union Trust Co., 348 Mo. Va. 340, 196 S.E. 668.

448, 154 S.W.2d 39.


Digitized by



have the legal right to seek a declaratory judgment, the costs of
the proceedings should not be imposed upon one of the defendants
who merely gave notice of a claim against the plaintiff, under the
practice in Pennsylvania.**

Costs on defendant's appeal from a decree for plaintiff in a suit
for injunction and declaratory judgment as to the validity and
infringement of patents will be divided where the judgment is
modified, but cost of printing an appendix to defendant's brief
will not be taxed where defendant printed the record as the ap-
pendix without the reviewing court's permission, and the court be-
ing of the opinion that the printing of so large a part of the record
was unnecessary.**

If there is no question of public interest involved and the court
could not g^ant any relief under the issues framed, jurisdiction will
not be retained in a declaratory or other action for a determination,
merely, of the unsettled question of costs.'^

Where the administration of teachers' salary schedules discrim-
inated against Negro school teachers, and an action for a declar-
atory judgment was filed and thereafter a new schedule was put
into effect with the discriminatory feature eliminated, the ques-
tion involved as to the discrimination under the former schedule
became moot, and the trial costs would be taxed against the
plaintiff and all other costs of the proceeding would be taxed
against the defendant county school official.'*

The prospect of allowances of cost does not afford a valid reason
for insisting that a question, which the plaintiff seeks to abandon,
shall be litigated; the possibility that a party may obtain greater
cost allowances if a particular matter is litigated, provides no
justification by enforcing a contest where there is no need for

The court may in a proper case involving certain interests of
litigants under a law, tax the costs against an estate, as for exam-

28. Pa.— Appeal of Kimmell, 96 Pa. of Grant County, 55 Ind.App. 239,
Super. 488. 103 N.E. 506.

29. U.S.— U. S. Galvanizing & Plat- 31. U.S.— Turner v. Keefe, D.C Fla.,
ing Equipment Corporation v. 50 F.Supp. 647.

Hanson -Van Winkle -Munning 32. N.Y. — Mutual Life Insurance Co«
Co., CC.A.W.Va., 104 F.2d 856. v. 95th Street & Lexington Avc-

30. Ind.— Modlin v. Board of Com'rs nue Corp., 60 N.Y.S.2d 450.


Digitized by



pie, where the action is prematurely brought to determine the
interest of a life tenant under a provision of the law.**

§ 455. Burden of Expense for Public Service Commission's Hear-
ing Not Warranting Declaratory Judgment

The alleged undue burden of the expense which would be im-
posed on a public utility by a State Public Service Commission's
mode of proving the value of corporate stock owned by the utility
would not suffice to authorize the maintenance of an action for a
judgment declaring that method was arbitrary and beyond the
Commission's power and authority, and that the cost of the pro-
ceeding rendered the inquiry confiscatory.'*

§ 456. Validity and Sufficiency of Declaratory Judgments

While it is not necessary that a declaratory judgment be in any
particular form, or that the phrase "the court declares the rights
of the plaintiff (or defendant) to be/' shall be used, so long as
the court actually passes upon or adjudges the issues raised by
the pleadings,'" still there are certain fundamentals indispensable
to the rendering of a valid adjudication. These essential requisites
are not dissimilar to such requirements for the validity of a judg-
ment in general. A declaratory judgment, in order to be a valid
adjudication, must be supported by sufficient pleadings.'*

Where a count in an action for declaratory relief alleged that a

33. Tenn.— United States Fidelity & ington Cab Co., 284 Ky. 786, 146
Guaranty Co. v. Askew, 183 Tenn. S.W.2d 26.

209, 191 S.W.2d 533. 36. U.S.— National Pigments & Chem-

34. N.Y.— Long Island Lighting ical Co. v. C K. Williams & Co.,
Company v. Maltbie, 176 Misc. 1, CCA.Mo., 94 F.2d 792.

26 N.Y.S.2d 452, affirmed 262 App. Ala.— Alabama College v. Har-

Div. 376, 29 N.Y.S.2d 532, motion '"^"^ ^^ ^^^' ^^' ^^^ ^^' ^^^'

granted 262 App.Div. 973, 30 N.Y. ..JX^!!^- ZTt^'^lV''''' ^''"

S.2d 108, affirmed 287 N.Y. 691, ??^, ^I^' f^' ^^1 ^o. 692.

^A XT tr 'ij -jAi L ij' .L • CaL — Kelso v. Sargeant, 11 Cal.

39 N.E.2d 301. holding the prcc- ,7^, 5^ ^^d 26.

pitation of the remedy IS the mam ConiL-Meringo v. George F.

function of a declaratory judgment pj,,, j„^ 112 conn. 557, 153 A.

action. 30,

35. Ky.— Carter v. Nance, 304 Ky. Wta.— Northwestern Nat. Ins. Co.
256, 200 S.W.2d 457. v. Freedy, 201 Wis. 51, 227 N.W.

Lexington Ry. System v. Lex- 952.


Digitized by



judgment debtor had fraudulently alienated her only property and
sought to have the conveyance set aside to such an extent as might
be necessary to satisfy the judgment, a judgment in response there-
to was appropriate.'^

Where the parties to a declaratory action sought a declaration
under a personal service contract and the proof was not addressed
to any other issue, and the court found only the essential facts as
to the making and meaning of the contract, and the absence of a
violation thereof by the plaintiff, an injunction against the defend-
ant's enforcement thereof was improper as unsupported by plead-
ings, proof or findings.'*

So, too, the facts established must be within the pleadings and
must support the declaration of rights ;'• and it has been held that,
in addition to these essential requirements, the declaration of rights
must be within the statute.*®

However, this holding is of doubtful soundness in view of the
fact that the court has inherent power, independent of the statute,
to render a declaratory judgment.*' The inherent jurisdiction of
the court to render a declaratory judgment is fortified by the well-
nigh universal holding of the courts that the declaratory judgment
statutes are merely procedural in character, and do not add any-
thing to the courts* jurisdiction.**

As to the sufficiency of a declaratory judgment, the matter of
substance is given consideration and mere forms are disregarded.*'

In a controversy between an employer and its employees, with

37. Cal.— Michal v. Adair, 66 Cal.App. Y.S. 681, reargument denied 245
2d 382, 152 P.2d 490. App.Div. 805, 281 N.Y.S. 409.

38. CaL— De Haviland v. Warner Ore.— Jordan Valley Irr. Dist. v.
Bros. Pictures, 67 Cal.App.2d 225, Title & Trust Co., 154 Ore 76, 58
153 P.2d 983. P.2d 606.

39. CaL— Wollenberg v. Tonningsen, 40. Wis.- State v. City of Milwau-

Online LibraryWalter Houston AndersonActions for declaratory judgments : a treatise on the pleading, practice, and trial of an action for a declaratory judgment, from its inception to its conclusion, with forms → online text (page 22 of 112)