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ATKINSON v. DRAKE et al., Executors.

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 Ch. 72-2. 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.

SUBMITTED SEPTEMBER 16, 1955 — DECIDED OCTOBER 11, 1955 — REHEARING DENIED NOVEMBER 16, 1955.
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ATKINSON v. DRAKE
(Oct 11, 1955)