When a declaration of right or the granting of further relief based thereon involves the determination of issues of fact triable by a jury and jury trial is not waived, the issues shall be submitted to a jury of 12 in the form of interrogatories, with proper instructions by the court, whether a general verdict is required or not. The instructions by the court shall in all respects be governed by the laws of this state relating to instructions or charges by a court to a jury.
(Ga. L. 1945, p. 137, § 3.)
Cross references.- Requirement that jury return only special verdict in case involving declaratory judgment, § 9-11-49.
JUDICIAL DECISIONS
"Shall" construed.
- In its ordinary signification "shall" is a word of command, and the context ought to be very strongly persuasive before that word is softened into a mere permission. Cole v. Frostgate Whses., Inc., 150 Ga. App. 320, 257 S.E.2d 309 (1979), rev'd on other grounds, 153 Ga. App. 301, 266 S.E.2d 807 (1980).
Provision is made by this section for determination of factual issues, and the extent of timber cutting which accords with good husbandry in a given locality under ascertained circumstances is a question of fact. Brogdon v. McMillan, 116 Ga. App. 34, 156 S.E.2d 828 (1967).
Oral instructions improper when timely request made for special verdict.
- If a timely written request for special verdict was made, the requirements of Ga. L. 1945, p. 137, § 3 and Ga. L. 1972, p. 689, § 8 (see now O.C.G.A. §§ 9-4-6 and9-11-49) were not satisfied in the declaratory judgment proceedings by instructing the jury orally as to the questions which must be resolved by the job in arriving at a verdict. Frostgate Whses., Inc. v. Cole, 244 Ga. 782, 262 S.E.2d 98 (1979).
Party waives error in manner of instruction unless timely objection made.
- In the absence of a specific and timely objection, a party waives error relating to the manner in which questions are submitted to the jury. Frostgate Whses., Inc. v. Cole, 244 Ga. 782, 262 S.E.2d 98 (1979).
Amount of tax credit is jury question.
- Plaintiff housing corporation is entitled to a declaratory judgment fixing the amount of tax credits to be allowed it by defendant municipality under provisions of local Act when defendant has taken over certain graded and paved streets and sewer and water mains constructed by the plaintiff's predecessor in title; but a jury question is made by the evidence as to the value of such credits to be allowed, and under this section, since a jury trial was not waived, the court erred in making a finding as to the amount of such tax credits without submitting such issue to a jury. Mayor of Savannah v. Moses Rogers Hous. Corp., 91 Ga. App. 32, 84 S.E.2d 488 (1954).
Amount of rent due as fixed by jury in declaratory judgment controls in further proceedings.
- If, in a declaratory judgment by a tenant proceeding, the amount of rent due should be adjudicated prior to any such determination for past-due rent under a subsequent dispossessory warrant, such finding by a jury in the declaratory judgment case would govern and control the amount due in the dispossessory warrant proceeding, and vice versa. Shippen v. Folsom, 200 Ga. 58, 35 S.E.2d 915 (1945).
Abandonment of a cemetery was a jury question.
- Descendants of the grantor of a burial ground were not entitled to summary judgment on a buyer's claim that the cemetery was abandoned, O.C.G.A. § 36-72-2(1), because there was evidence that no one had been buried there since 1971, that the descendants had not paid taxes on the lot, and that the descendants had not maintained the cemetery. City of Sandy Springs v. Mills, 331 Ga. App. 709, 771 S.E.2d 405 (2015).
Cited in Ison v. Travis, 212 Ga. 335, 92 S.E.2d 518 (1956); Hart v. Columbus, 125 Ga. App. 625, 188 S.E.2d 422 (1972); Preferred Risk Mut. Ins. Co. v. Miles, 152 Ga. App. 744, 263 S.E.2d 708 (1979); American Century Mtg. Investors v. Bankamerica Realty Investors, 246 Ga. 39, 268 S.E.2d 609 (1980); Glynn County v. Palmatary, 247 Ga. 570, 277 S.E.2d 665 (1981); International Indem. Co. v. Blakey, 161 Ga. App. 99, 289 S.E.2d 303 (1982); Macko v. City of Lawrenceville, 231 Ga. App. 671, 499 S.E.2d 707 (1998), overruled on other grounds, Kleber v. City of Atlanta, 291 Ga. App. 146, 661 S.E.2d 195 (2008); Aponte v. City of Columbus, 246 Ga. App. 646, 540 S.E.2d 617 (2000); State Farm Mut. Auto. Ins. Co. v. Mabry, 274 Ga. 498, 556 S.E.2d 114 (2001); Ga. Cas. & Sur. Co. v. Valley Wood, Inc., 336 Ga. App. 795, 783 S.E.2d 441 (2016).
RESEARCH REFERENCES
Am. Jur. 2d.
- 22A Am. Jur. 2d, Declaratory Judgments, § 82.
C.J.S.- 26 C.J.S., Declaratory Judgments, §§ 152, 153.
U.L.A.- Uniform Declaratory Judgments Act (U.L.A.) § 9.
ALR.
- Declaration of rights or declaratory judgments, 12 A.L.R. 52; 19 A.L.R. 1124; 50 A.L.R. 42; 68 A.L.R. 110; 87 A.L.R. 1205; 114 A.L.R. 1361; 142 A.L.R. 8.
Jury trial in action for declaratory relief, 13 A.L.R.2d 777; 33 A.L.R.4th 146.
Right to jury trial in action for declaratory relief in state court, 33 A.L.R.4th 146.