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 93 of 112)
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mington, 237 N.C. 179, 74 S.E.2d
749. In action for declaratory
judgment adjudging rights of
hospital to support from city and
county for care of their indigent
sick and afflicted poor, finding
which summarized 1915 appropri-
ation statute, adding that since

1915 appropriations were made
by city and county in equal
amounts, is not a finding of fact,
nor a conclusion of law, nor an
adjudication that payments under
act were either lawful or author-
ized, but in view of holding that
1915 statute did not require nor
permit appropriation for hospital
support, such finding was not
prejudicial error.

51. U.S. — Helene Curtis Industries,
Inc. V. Sales Affiliates, Inc., 121
F.Supp. 490. In proceeding be-
fore master concerning validity
and infringement of patent on
permanent waving composition
employing mercaptans, master's
finding that three of the 37 mer-
captans within claims could not
be used as waving agents was
not erroneous.

54. CaL— DeKay v. DeKay Pneu-
matic Tools, 131 Cal.App.2d 625,
281 P.2d 76. In suit for declara-
tory relief under a contract for
the sale and distribution of tools
to be manufactured by plaintiff,
where main issue was whether
defendant had fulfilled its obliga-
tion to purchase a minimum of
1000 tools, findings ^f the trial
court were adequate to cover the
issues tendered by the pleadings.

56. Neb^-State v. Adams. 162 Neb.
127, 75 N.W2d 539. On appeal
from a declaratory judgment ev-
ery finding and conclusion of trial
court was subject to review and
redetermination, including ques-
tions which might adversely af-
fect interest of appellant.

59. Mast. — Trustees of Dartmouth
College V. City of Quincy, 331
Mass. 219, 118 N.E.2d 89. Where
petition for declaratory decree
asks a determination as to status
of accumulated income of chari-
table trust, finding that trustee
owed to fund the amount of with-

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§ 445

drawals with interest was within
scope of petition and appropriate
for consideration under implied
prayer for general relief.
60, U.S. — ^Universal Underwriters
Ins. Co. V. Kowalczyk, 216 F.2d
120. In declaratory judgment ac-
tion by insurance company to. de-
termine whether automobile lia-
bility insurance policy issued by
it was in force at time of acci-
dent occurring during term of
policy, wherein opinion of trial
court which directed formal find-
ings to be drawn in accordance
with its term, shows that court
was aware of contents of insur-
ance application and that judg-
ment was not rested upon mis-
take as to such contents, appar-
ently inadvertent formal finding
that insurance application con-
tained statements, which, in fact,
did not appear in application, was
not error.

CaL — Decter v. Stevenson Prop-
erties, Inc., 39 Cal.2d 407, 247
P.2d 11. In a proceeding for de-
claratory relief in determining
rights of parties under ambiguous
lease, trial court's finding that
revocation prevented lessees from
conducting the business contem-
plated by the parties was not out-
side the issues raised by the
pleadings but was material to
question whether event which
would terminate the lease, by its
terms, had occurred, and, e^•en if
such findings of evidentiary tacts
were unnecessary they did not
constitute prejudicial error.
S.C. — Furman University v. Glo-
ver, 226 S.C 1. 83 S.E.2d 559.
In an action for declaratory judg-
ment where university sought
declaration only that heirs of
grantor had no title or interest in
lands in question, trial court's
finding that the deed involved

contained no trust, covenant or
condition enforceable by others
than the parties to the action,
went beyond the issues framed
by the pleadings, and was modi-
fied so as to find only that grant-
or's heirs had no title or interest
in such lands.

61.1. Cal. — American Enterprise, Inc.
V. Van Winkle, 236 P.2d 901

Wagner v. Shapona, 123 Cal.
App.2d 451, 267 F2d 378. In an
action for declaratory judgment
interpreting sublease by partners,
wherein parties stipulated that
sublessee would testify and part-
ner would deny that partner told
lessee he could stay as long as
sublessors had their lease« trial
court's failure to make finding on
whether such conversation oc-
curred was reversible error.

Owsley V. Hamner, 36 Cal.2d
710. 227 P.2d 263. In landlords'
action for declaration of their
rights to close passageway and
patio on leased premises adjacent
to tenants' storeroom, where find-
ings were sufficient to support
judgment for tenants, failure to
find that all area of way and patio
was used with premises was not

61.2. U.S. — Norwich Union Indemni-
ty Co. V. Haas, 179 F.2d 827.
Finding that insured signed
statement concerning automobile
accident after reply of agent of
insurer that he was not inter-
ested in what insured was doing
prior to accident, which, was al-
legedly erroneous on the ground
that the statement was signed
prior to the reply of the agent,
would not justify reversal of
judgment for insured in action
by liability insurer for declara-
tory judgment, where sequence
of events complained of occurred

Digitized by




in space of few hours of same
morning, and ultimate fact found
by district court was that insured
had not violated terms of policy.
61.3. CaL — Nelson v. Oro Loma San-
itary District of Alameda County,
101 Cal.App.2d 349, 225 F2d 573.
Superior court in declaratory
judgment action and district court
of appeals on appeal could not go
behind finding of board of direc-
tors of sanitary district of county
that board had jurisdiction to
make reassessment, in absence of
allegation of fraud or arbitrary
action on part of board.

Nathan H. Schur, Inc. v. City
of Santa Monica, 292 P.2d 540
(Cal.App.). In consolidated ac-
tions by corporation and six in-
dividuals for declaratory judg-
ment as to validity of city ordi-
nance permitting operation of
games of skill and injunctions

§ 446. Implied Findings of Fact

against expenditure of city tax
funds for licensing games and in-
terference with individual plain-
tiffs' operation thereof, trial court
properly refused to review city
council's findings after public
hearing requested by individual

N.J.— Wagner v. Ligham, 39 N.J.
Super. 13, 120 A.2d 474. In de-
claratory judgment proceeding: by
landlords against state rent con-
trol director, administrative find-
ing which was contained in di-
rector's regulation, and which
was adopted to enable litigants,
if they chose to take advantage
of the finding, to shorten their
proofs as to increase in costs,
would be sustained, in absence
of proof which would in any i^vay
impeach the finding and the regu-
lations which depended upon it

See footnote as to individual cases involving implied findings of

62.1. U.S.— Kemart Corp. v. Print-
ing Arts Research Laboratories,
Inc., 201 F.2d 624. A court may
not find a patent uninfringed and
at the same time hold it valid,
since a holding of validity would
be a decision of a hypothetical

CaL— Ho Gate Wah v. Fong
Wan. 118 Cal.App.2d 391, 257
P.2d 674. In action for declara-
tory judgment that employment
contract was terminated about
three months prior to the end of
term for good cause, and that
employer did not have exclusive
right to employee's services
thereafter, no finding was re-
quired on employer's allegation
that about five months prior to
expiration of term, employee left

employment without notice,
and employer pleaded that con-
tract was still in force and no
breach of contract and damages
were alleged, court impliedly de-
termined that employee's leaving
did not terminate contract.
Vt. — Merchants Mutual Casualty
Co. V. Izor, 118 Vt. 440, 111 A.2d
732. In action for a declaration
of protection afforded insured by
automobile liability policy, find-
ing that insured had limited
knowledge of injuries sustained
by passenger was inconsistent
with another finding which stated
facts showing insured's complete
knowledge of accident and was
to be disregarded, with the re-
sult that insurance company was
relieved of all liability for failure

Digitized by





of insured to give notice as soon
as practical as required by policy.
Wyo. — Cassas v. Cassas, 73 Wyo.
147, 276 P.2d 456. In divorced
wife's action for judgment de-
claring her to be the owner of
one-half the property, which she
alleged that she purchased jointly
with her husband and contributed
thereto, general verdict for hus-
band was not inconsistent with

special findings that the parties
understood, as husband and wife,
that they would purchase lot in
question for purpose of building
a home thereon, and that parties
understood that realty was being
purchased for building a home,
in view of jury's explanation that
the phrase husband and wife was
interpreted not to mean co-own-
ers of the property.

§ 449. Executory Process not Necessary to a Declaratory Judg-

A declaratory judgment or decree simply declares the rights of
the parties or expresses the opinion of the court on a question of
law, without ordering anything to be done, its distinctive charac-
teristic being that the declaration stands by itself and no executory
process follows as of course, and no execution performance is
sought from opposing parties.® ' • '

80. Pa. — Philadelphia Manufacturer's
Mut. Fire Ins. Co. v. Rose, 364
Pa. 15, 70 A.2d 316. Fact that if
insured prevailed in proceedings
by insurer seeking a declaration
that fire policy did not cover a
building belonging to insured
which was damaged by fire, and
wherein insured sought declara-
tion that his damaged building
was covered by policy, it might
be necessary either by supple-
mentary proceedings or by inde-
pendent action, to determine
amount payable by insurer, did
not justify dismissal of proceed-
ing under declaratory judgment


81.1. Ga. — Burgess v. Burgess, 210
Ga. 380, 80 S.E.2d 280.

84. Ohio— Hipsher v. Hunter, 114
N.E.2d 842 (Ohio App.), aff'd
114 N.E.2d 847. Where verdict
was directed for landlord in his
action for declaratory judgment
against former tenant claiming
right to possession of realty un-
der oral lease, question of title
to realty was decided by jury in
such action and landlord was en-
titled to enforcement of decision
by injunction restraining former
tenant from asserting acts of
ownership on the premises.

§ 451. Further Relief Granted After Declaratory Judgment, When

The California statute providing that no declaratory judgment
should preclude any party from obtaining additional relief based
upon the same facts does not allow a litigant who is determined not
to have any rights to relitigate his claim in quest for different
relief. ^^-^

Digitized by


§ 451



U.S.— Powell V. McCormack,
Dist. Col.. 89 S.Ct. 1944, 395 U.S.
486, 23L.Ed.2d491;

Edward B. Marks Music
Corp. V. Charles K. Harris
Music Pub. Co., C.A.N.Y., 255
F.2d 518, cert. den. 79 S.Ct. 51,
358 U.S. 831, 3 L.Ed.2d 69;

Hanover Fire Ins. Co. v.
Nieves Hidalgo, D.C.Puerto Rico,
147 F.Supp. 678; Sohappy v.
Smith, D.C.Ore., 302 F.Supp. 899;
White V. State of Tenn., D.C.
Ga., 304 F.Supp. 661.
95. Ala. - Wolff V. Woodruff, 258
Ala. 1, 61 So.2d 69. The statutory
provision for supplemental relief
in suit for declaratory judgment
contemplates application to court
having jurisdiction for such re-
lief and does not contemplate
that supplemental relief shall be
combined with principal relief
sought by declaration as to con-
troversy between parties.
Ariz^ — ^Adams v. Bear, 87 Ariz.
288, 350 P.2d 751.

CaL— Dills V. Delira Corp., 145
C.A.2d 124, 302 P.2d 397.

D.C.— Service v. Dulles, C.A.,
235 F.2d 215, 98 U.S.App.D.C.
268, rcvd. on oth. grds. 11 S.Ct.
1152, 354 U.S. 363, 1 L.Ed.2d

DeL— City of Wilnungton ▼.
Delaware Coach Co., Ch., 230
A.2d 762.

Fla^ — South Dade Farms, Inc.
▼. Peters, 107 So.2d 30; Thomas
v. Cilbe, Inc., App., 104 So.2d
397; Koscot Interplanetary, Inc.
▼. State ex rel. Conner, App.,

HI.— Mundo v. DeGrazio, H 111.
App.2d 52, 222 N.E.2d 253; Pres-
byterian Distribution Service v.
Chicago Nat. Bank, 28 Ill.App.2d
147, 171 N.E.2d 86; Koziol v.
Village of Rosemont, 32 IlLApp.
2d 320, 177 N.E.2d 867.

Md.— Phil J. Cobb V. MarWe,
249 Md. 718, 241 A.2d 718.
Mats. — Essex Co. v. Goldman,
258 N.E.2d 526.

NJ^ — ^Union County Indus. Park
y. Union County Park Commis-
sion, 95 N.J.Supcr. 448, 231 A.2d

N.M^ — Pan Am. Petroleum Corp.
V. El Paso Natural Gas Co., 77
N.M. 481, 424 P.2d 397.
N.Y*— Sunshine Book Co. v. Mc-
Caffrey, 168 N.Y.S.2d 268, 4 A.D.
2d 643; American Hydrocarbon
Corp. v. Selby, 263 N.Y.S^d 280,

Okb—Oklahoma Alcoholic Bev-
erage Control Bd. v. Central Li-
quor Co., 421 P.2d 244.

96. Fla.— South Dade Farms, Inc. v.
Peters, 107 So.2d 30 (Fla.). Even
though a final decree had been
rendered, court had jurisdiction
to issue order to show cause as
to why supplemental relief should
not be granted. Such order was
sufficient as an initial process to
bring responding parties before
the court, and respondents could
either have answered petition on
the facts or attacked sufficiency
as a matter of law. Such order
could not be vacated on inter-
locutory appeal.

58. Ky.— Gty of Paducah v. Electric
Plant Bd. of City of Paducah,
449 S.W.2d 907.

N.M. — Pan Am. Petroleum Corp.
V. El Paso Natural Gas Co.,
11 N.M. 481, 124 P.2d 397.

99. CaL— Spencer v. Nelson, 238 P.2d
169 (CaL). In action for a de-
claratory judgment with respect
to the validity of a contract be-
tween attorney and defendant for
formation of a corporation for
development of the defendant's
inventions, where evidence sup-
ported conclusion of the lower
court that the contract was void
and the court reserved jurisdic*

Digitized by




§ 451

tion to enter necessary orders
and decrees and to administer
further equity between the par-
ties, the lower court was author-
ized to do equity and declare the
further rights of the parties in-
dependently of the contract.

Bertero v. National General
Corp., 62 CaLRptr. 714, 254 CA.
2d 126.

Mo.— Hudson v. Jones, 278 S.W.
2d 799 (Mo.App.). If trial court
in trial of declaratory judgment
action, finds that plaintiffs are en-
titled to relief supplemental to
declaratory judgment sought and
to determine nature of the issues
of fact involved, proceedings for
such supplemental relief and for
trial of issues of fact are author-
ized by the statute.
WU. - Adams v. Jarvis, 23 Wis.
2d 453. 127 N.W.2d 400.
1. CaL — Amerson v. Christman, 68
CaLRptr. 378, 261 C.A.2d 811.

Ky.— E. F. Prichard Co. v. Hei-
delberg Brewing Co., 314 Ky.
100, 234 S.W.2d 486. Court has
jurisdiction to enter money judg-
ment in a declaratory judgment

Nd>. — Richardson v. Watcritc
Co., 169 Neb. 263, 99 N.W.2d
2. Ala. — Alexander City v. Conti-
nental Ins. Co., 262 Ala. 515, 80
So.2d 523. Under statutory pro-
vision for supplemental relief in
action for declaratory judgment,
supplemental relief may be based
on either equitable or legal right.
Penney v. Odom, 260 Ala. 563,
71 So.2d 881. A declaratory judg-
ment, while seeking a declaration
of rights or status of the parties,
does not seek execution or per-
formance from defendant or op-
posing party, but such does not
mean that the further and com-

plete relief may not be had in
such a proceeding.

Wolff v. Woodruff, 258 Ala. 1.
61 So.2d 69. The statutory pro-
vision for supplemental relief in
suit for declaratory judgment is
sufficient to justify supplementary
proceeding in court wherein de-
claratory judgment is rendered,
though directed to enforcement
of claim available at law.
IlL — Burgard v. Mascoutah Lum-
ber Co., 6 Ill.App.2d 210, 127
N.£.2d 464. Provision in declara-
tory judgment statute for grant-
ing further relief upon declara-
tion of parties' rights, is not lim-
ited to relief previously asked
for, but contemplates something
further based upon the declara-
tion of rights, and permits the
parties to petition and such fur-
ther relief as may be appropriate
after the declaration of rights,
although not previously prayed
by a complaint or counterclaim.
Mo.— Hudson v. Jones, 278 S.W.
2d 799 (Mo.App.). In action by
purchasers for declaratory judg-
ment construing contract for sale
of land and deed, issues as to
confusion concerning boundaries
of land sold and as to any dam-
ages and the amount thereof sus-
tained by plaintiffs as the result
of breach of contract by vendors,
and any other issues of fact
necessary to complete relief could
be submitted to a jury for de-

Pa. — Daniels Co., Contractors v.
Nevling, 385 Pa. 276, 122 A.2d
814. Proceeding for declaratory
judgment should not be dismissed
because in one contingency it
may be necessary either by sup-
plementary proceedings in the
case, or by independent action
based upon what may be adju-
dicated in the case, to determine
amount of dama.^e payable.

Digitized by




10. U.Sv— Powell v. McCormack,
Dist. Col., 89 S.Ct. 1944. 395
U.S. 486, 23 L.Ed.2d 491; Ed-
ward B. Marks Music Corp. v.
Charles K. Harris Music Pub.
Co.. C.A.N.Y.. 255 F.2d 518, cert,
den. 79 S.Ct. 51, 358 U.S. 831, 3
L.Ed.2d 69; Hanover Fire Ins. Co.
V. Nieves Hidalgo, D.CPuerto
Rico. 147 F.2d.

Ky. — City of Paducah v. Elec-
tric Plant Bd. of City of Pa-
ducah, 449 S.W.2d 907.

KM* — ^Pan Am. Petroleum Corp.
V. El Paso Natural Gas Co., 77
N.M. 481, 424 PJd 397.

14.1. CaL— Dills v. Delira Corp., 145
Cal.App.2d 124. 302 P.2d 397.

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

The practice in England and in America is to combine a request
for a declaration with a request for an injunction or other coercive
relief. Consequential or executory relief may be demanded either
in association with or as a supplement to declaratory relief. ^^-^ ^

The relief which is provided by declaratory judgment statutes
may be asked for either in conjunction with other relief or alone
for the provisions of the declaratory judgment statutes grant cumu-
lative remedies. '''•'

14.11. U.S.— Landers Frary & Clark
V. Vischer Products Co.. 201 F.
2d 319.

Mo.— Jesse v. O'Neal, 364 Mo.
333, 261 S.W.2d 88. Both de-
claratory and coercive relief may
be sought under the declaratory
judgment act.

U.S.— Sohappy v. Smith, D.C
Ore., 302 F.Supp. 899.
Mo.— Evans v. Brussel, 300
S.W.2d 442.

M.Y^Feldman v. Pulitrer, 162
N.Y.S.2d 449, 7 Misc.2d 709.
Va. — Buchner v. Kenyon L. Ed-
wards Co.. 210 Va. 502, 171 S.E.
2d 676.

Wash. — Interstate Hosts, Inc. v.
Airport Concessions. Inc., 429, 71
Wash.2d 487, P.2d 245.

16. U.S.— Alcoa S. S. Co. v. Velcz,
D.C. Puerto Rico, 285 F.Supp.
CaL — Equitable Savings & Loan

Association v. Superior Court in
and for Los Angeles County, 230
P.2d 119 (CalApp.). Where loan
association instituted action in su-
perior court for declaratory relief
and petition for alternative writ
of mandate in which they charged
various irregularities in proceed-
ing before building and loan com-
missioner wherein incorporators
received license to engage in loan
business but did not apply for
writ nor join in incorporators'
motion to issue an alternative
writ and court refused to grant
writ and ordered that question
of issuing writ be determined
upon trial of action, action had
been regarded as one for de-
claratory relief and not manda-
mus proceeding, and according-
ly, court was without authority
to stay commissioner's order au-
thorizing incorporators to engage
in loan business.

Digitized by




§ 453

Lortz V. Connell, 78 Cal.Rptr.
6. 273 C.A2d 286.

HI.— Young V. Hansen, 118 111.
App2d 1, 249 N.E2d 300.

17.1. CaL — Herrman v. Firemen's
Fund Ins. Co., 127 Cal.App.2d
560, 274 P.2d 501.
Ky. — Fontaine v. Dept. of Fi-

nance, 249 S.W.2d 799 (Ky.),
Combination of declaratory judg-
ment action and other remedies
which seem to be available is
generally permissible and advan-
tageous since merits will be con-
sidered if any one of remedies
sought is found to be appropri-

§ 453. Controversy Terminated by a Declaration of Rights

The. termination of the controversy which gives rise to a declara^
tory judgment proceeding is one of the principal purposes of the
declaratory judgment lawj*'-'^ Courts will refuse to render or
enter a declaratory judgment or decree when such judgment or
decree, if rendered, will not terminate the controversy or remove
the uncertainty giving rise to the proceeding, ^^-^^ for a declara-
tory judgment is appropriate only when it will terminate the con-
troversy giving rise to the proceeding. ^^•" Therefore, when the
request in a declaratory judgment action is not for ultimate deter-
mination of the rights but for preliminary findings and conclusions
intended to fortify the litigant against future regulations, it would
be a rare case in which the relief should be granted. '^-'^

Notwithstanding what is said in the preceding paragraph, it was
held in a Texas case that a declaration on a question in the case
was justified when it served a useful purpose although the contro-
versy might not be ended. ^''•^* CaL— Abbott v. Gty of San
Diego, 332 F.2d 324 (Cal.App.).
It is the duty of the court hear-
ing an action for declaratory re-
lief to make a complete deter-
mination of the controversy.
IlL — Illinois Power Co. v. Miller,
11 Ill.App.2d 296, 137 N.E.2d 78.
Authority of circuit court to hear
cause under declaratory judg-
ment act carried with it authority
to settle rights between parties
in the case.

Mass.— Foster v. City of Everett,
334 Mass. 14, 133 N.E.2d 480.
One of the principal purposes
of the declaratory judgment law

is to settle completely the con-
troversy submitted for decision
and such purpose is emphasized
by the fact that the court may
refuse to render or enter de-
claratory judgment or decree
where if rendered or entered,
such decree would not terminate
the uncertainty or controversy
giving rise to the proceedings or
for other sufficient reasons.

Zaltman v. Daris, 331 Mass.
458, 120 N.E.2d 393. In proceed-
ing under the declaratory judg-
ment act, it is the duty of the
judge to adjudicate the decisive
issues involved in the controversy

Digitized by


§ 453



between the parties and to make
binding declarations concerning
such issues, thus putting the con-
troversy to rest.

Neb.— Custer Public Power Dis-
trict V. Loup River Public Power
District, 162 Neb. 300, 75 N.W.2d

Pa. — Daniels Co. Contractors v.
Nevling, 385 Pa. 276, 122 A.2d
814. Where plaintiff petitioned
only for judgment to determine
meaning of clause of contract
between parties and defendants
answer for a decree construing
same clause and other parts of
contract, it became incumber
upon the court to pass upon that
clause which both parties sought
to have interpreted.

17.12. U.S.— Clark v. Flory, 141 F.
Supp. 248; W. R. Grimshaw Co.
v. Nazareth Literary and Benev-
olent Institution, 113 F.Supp.

Colo.— People of Colorado ex rel.
Inter-Church Temperance Move-
ment of Colorado v. Baker, 133
Colo. 398, 297 P.2d 273. Court
rendering declaratory judgment
must make full and complete dec-
laration and be convinced before
granting such relief that it will
stabilize disputed legal relations
as court generally is limited by
provisions of declaratory judg-
ment statutes, that declaration
must end litigation or fix and
settle parties' rights. All persons,
having or claiming substantial
interest in subject matter of con-
troversy which would be aflfected
by declaratory judgment and
whose presence is necessary to
the complete and effective de-
termination of controversy and
rights sought to be declared, are
necessary parties to action for
declaratory judgment and must
be before the court and given

opportunity to be heard as to
their own rights or defenses.
Ga.— Cook V. Sikes, 210 Ga. 722,
82 S.E.2d 641.

Md.— Givner v. Cohen, 208 Md.
2\ 116 A.2d 357. Jurisdiction in

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 93 of 112)