and her rights should be protected in the judgment.

Judgment-consent-setting

aside.

The court did not err in refusing to set aside the consent judgment rendered in April, 1925, for the sale of the personal property. While Mrs. Henning filed an affidavit that she did not consent to the judgment, no affidavit was filed by her attorneys showing that they did not consent to it, and in the progress of an action attorneys may consent to orders which they deem proper under the pleadings. The pleadings that had been filed and were not controverted warranted the judgment.

How much has been paid upon the different debts, who paid it, how much is unpaid, are matters not clearly shown by the record. The rights of the St. Matthews Bank & Trust Company, under the deed of trust, depend upon whether it is the owner and holder of the bonds referred to by having purchased them and paid the money to the other creditors as provided by the deed of trust. None of these bonds are filed in the action, and the record

does not definitely show who now holds the bonds. They should be filed, if a motion to this effect is made.

There was no substantial error in refusing to file the first and second paragraphs of the Appeal-refusal

answer of Mrs. to allow filing of pleadings. Henning. The ac

tion of the court in refusing to allow them to be filed was, in substance, the same as sustaining a demurrer to these two paragraphs, which would have been proper, as the facts stated therein constituted no defense to the action.

On the return of the case to the Circuit Court either of the parties will be allowed to amend their pleadings, if they desire to do so. Mrs. Henning will be regarded as before the court on the amended answer Appearanceand cross petition

appeal as.

of the trust company filed in vacation, as the appeal enters her appearance to this pleading.

Judgment reversed and cause remanded for further proceedings consistent herewith.

Whole court sitting.

I. In general, 43.

III. Declaratory orders or judgments:

a. In general, 44.

1. In general, 44.

a. In general, 45.

IV.-continued.

n. Miscellaneous, 55.

This annotation supplements annotations on the same subject in 12 A.L.R. 52, and 19 A.L.R. 1124.

I. In general.

No later decisions herein. For earlier cases, see annotation in 12 A.L.R.

53.

II. Distinction between declaratory orders or judgments and judgments giving consequential relief.

(Supplementing annotation in 12 A.L.R. 53.)

The primary purpose of the Declaratory Judgment Act is to relieve litigants of the common-law rule that no declaration of rights may be judicially adjudged, unless a right has been violated for the violation of which relief may be granted. The act is only applicable when it is made to

appear that an actual controversy exists, and all persons interested must be made parties. DE CHARETTE v. ST. MATTHEWS BANK & T. Co. (reported herewith) ante, 34.

It is pointed out in Newsum v. Interstate Realty Co. (1925) 152 Tenn. 302, 278 S. W. 56: "A declaratory judgment is essentially one of construction. It is apparent from the history of the legislation providing for this procedure, as well as from the recitals of the Uniform Declaratory Judgments Act itself, that its primal purpose is the construction of definitely stated rights, status, and other legal relations, commonly expressed in written instruments, although not confined thereto, and, while determination of an issue of fact is authorized by § 9 of the act, the settlement of disputed facts at issue between the parties will

ordinarily be relegated to the proper jurisdictional forums otherwise provided. Recognizing that the courts have a very wide discretion under these acts, which should be exercised with the utmost caution, it has been said by good authority that 'a declaration may properly be refused if it can be made only after a judicial investigation of disputed facts.""

The Connecticut Declaratory Judgment Statute is held, in Braman v. Babcock (1923) 98 Conn. 549, 120 Atl. 150, to authorize the "superior court to render final judgments as to the existence or nonexistence of any right, power, privilege, or immunity, or of any fact upon which the existence or nonexistence of such right, power, privilege, or immunity may depend, whether the same now exists or will arise in the future. . . Also, . . that the party seeking such a judgment must have an interest, legal or equitable, by reason of danger of loss, or of uncertainty as to his rights or other jural relations, and that there be an actual bona fide and substantial question or issue in dispute, or substantial uncertainty of legal relations which requires settlement between the parties; that all persons having an interest in the . . . complaint are parties to the proceeding, or have reasonable notice; and that the court be of the opinion that the parties should not be left to seek redress in some other form of procedure, that issues of fact may be submitted to the jury, and that the decision of the court shall be final and subject to review by appeal."

III. Declaratory orders or juāgments. a. In general. (Supplementing annotation in 12 A.L.R. 55.)

Proceedings under the Declaratory Judgment Act are governed by established rules of pleading, including that of multifariousness. Newsum v. Interstate Realty Co. (1925) 152 Tenn. 302, 278 S. W. 56.

While the court may make a binding declaration of right whether or not any consequential relief is or can be claimed, it will refuse to do so unless some useful purpose can thereby be

-

served. Piper v. Spence [1925] 1 D. L. R. 334, Manitoba, -—. Persons who are not parties to an action for a declaratory judgment, and hence are not bound thereby, cannot assert rights under the judgment as against a party to the action in which it was rendered, on the ground that the judgment is binding upon him. DE CHARETTE V. ST. MATTHEWS BANK & T. Co. (reported herewith) ante, 34.

The effect of the Declaratory Judgment Statute is to increase the usefulness of the courts and remove doubt and uncertainty as to the final result of legal controversies, by empowering the court to enter declaratory judgments and decrees touching the rights of the parties in such cases. Patterson v. Patterson (1926) 144 Va. 113, 131 S. E. 217. While the rule permitting a declaration of right is a useful one when properly used, yet its promiscuous application might develop into a nuisance. Per Lord Sterndale, M. R., in Gray v. Spyer (1922) 2 Ch. (Eng.) 29—C. A.

The Declaratory Judgment Act applies only to actions commenced after it took effect, and hence cannot be relied upon to sustain an action pending at the time of its enactment. Watts v. Barker (1922) 200 App. Div. 916, 193 N. Y. Supp. 59.

The judicial power of the state is not confined to the consideration of cases where consequential relief only is sought. Braman v. Babcock (1923) 98 Conn. 549, 120 Atl. 150. The court said that such a rule would enforce a limitation upon the judicial power in accord with custom, rather than with reason and logic.

Where a declaratory judgment statute imposing upon the court the function to declare rights and other legal relations between proper parties provides that such declaration has the force of a final judgment, it is not violative of the state Constitution upon the ground that the statute imposes upon the court the duty of performing nonjudicial function. Ibid. It is pointed out in this case that the Connecticut Constitution does not, in terms, limit the exercise of judicial power to "cases and controversies" as does the Constitution of the United States.

IV. Under statutes, practice acts, and

orders.

a. In general.

(Supplementing annotations in 12 A.L.R. 65, and 19 A.L.R. 1125.)

Declaratory judgment will not be rendered where the declaration is merely asked for as a foundation for substantive relief which fails. Windsor v. Canadian P. R. Co. (1923) 54 Ont. L. Rep. 222, [1924] 2 D. L. R. 177.

A declaratory judgment will not be rendered where the effect would be to permit a party to obtain indirectly relief which he could not obtain directly. Piper v. Spence [1925] 1 D. L. R. 334, - Manitoba, —.

Where a statutory right is given a party, a court will not by a declaratory decree determine that such party shall proceed in the first instance in some manner other than that prescribed by the statute to enforce his right. Tanner v. Boynton Lumber Co. (1925) 98 N. J. Eq. 85, 129 Atl. 617. Under the rules adopted by the Connecticut court for practice under the provisions of the Declaratory Judg

ment Act, it is held that where a plaintiff in an action is entitled to invoke the jurisdiction of the court for declaratory judgment, he may couple with a prayer for such judgment, prayers for consequential relief, where the legal basis for the same depends on the legal relations to be established by the declaratory judgment. Alfred E. Joy Co. v. New Amsterdam Casualty Co. (1923) 98 Conn. 794, 120 Atl. 684. The court said that these legal relations and the legal consequences which follow from them may, as to their declaration, be incorporated in the complaint, and thereby furnish sufficient basis for a judgment for consequential relief.

b. Relief as being discretionary. (Supplementing annotations in 12 A.L.R. 66, and 19 A.L.R. 1127.)

It is a matter of judicial discretion whether jurisdiction shall be taken of a proceeding for a declaratory judgment. Kariher's Petition (1925) 284 Pa. 455, 131 Atl. 265.

But it seems that the question of discretion cannot be raised prior to a hearing on the merits. Thus, where attacked by a motion to dismiss, a complaint will be held sufficient if it contains a statement of the details of a dispute between the parties to the action, and requests a declaration of rights and of the legal relations of the parties. Greene V. Holbrook (1927) 128 Misc. 769, 220 N. Y. Supp 151. The court said that "the final exercise of the court's discretion either to declare the rights and legal relations of the parties, or to decline to pronounce a declaratory judgment, as provided in rule 212 of the Rules of Civil Practice, cannot be anticipated by a court at special term, nor by the trial court, in advance, and not until such time during the trial as the court can properly make such final determination."

c. Necessity of bona fide controversy as to which judgment will be res judicata. (Supplementing annotations in 12 A.L.R. 67, and 19 A.L.R. 1127.)

In general it may be said that to invoke the jurisdiction of the court, it is essential that there be involved a

genuine existing controversy calling for the adjudication of present rights. The courts are not constituted or operated for the vindication of parties with respect to their conception of the correct application of the law, nor does it devolve upon them to decide questions not arising in the due course of litigation simply for the gratification of parties or others. Holt v. Custer County (1926) 75 Mont. 328, 243 Pac. 811.

Courts do not sit for the purpose of determining speculative or abstract questions of law, but are confined in their judicial actions to real controversies wherein the legal rights of the parties are necessarily involved. Stinson v. Graham (1926) Tex. Civ. App., 286 S. W. 264. The Declaratory Judgment Law is available only in cases of actual controversies. West v. Wichita (1925) 118 Kan. 265, 234 Pac. 978. Jurisdiction will never be assumed unless the tribunal appealed to is satisfied that an actual controversy exists between parties, all of whom are sui juris and before the court, and that the declaration sought will be a practical help in ending the controversy. Kariher's Petition (1925) 284 Pa. 455, 131 Atl. 265, supra.

In order to be entitled to invoke the jurisdiction of the court under the Declaratory Judgment Act, there must be a contention on one side and a counter contention on the other. Such controversy must be a justiciable one which it is the duty of plaintiff to manifest by appropriate averments in his petition. To render the controversy justiciable, plaintiff should aver his legal rights in the premises, and that defendant claims other or contrary rights or occupies some official relation thereto, with imposed duties. which, if exercised, would impair, thwart, obstruct, or defeat plaintiff in his rights. Revis v. Daugherty (1926) 215 Ky. 823, 287 S. W. 28. It is contemplated that the parties to the proceeding shall be adversely interested in the matter as to which the declaratory judgment is sought, and their relation thereto such that a judgment or decree will operate as res judicata

as to them. It authorizes the entry of a judgment before the right is violated, and even though no consequential relief is sought or could be asked for or granted. It does not, however, confer upon the courts the power to render judicial decisions which are advisory only.. Patterson v. Patterson (1926) 144 Va. 113, 131 S. E. 217.

To entitle a party to have the court render a declaratory judgment with reference to the rights of the parties under claims of mechanics' liens, it must appear that they have present rights against the persons whom they make parties to the proceedings, with respect to which they may be entitled to some relief. And where it appears that the complainants can have no relief as against any party defendants, such party will not be forced into litigation which can have no final result in favor of the complainant, especially where such litigation will delay the party defendant in enforcing rights which have already been established in his favor as against complainant. Tanner v. Boynton Lumber Co. (1925) 98 N. J. Eq. 85, 129 Atl. 617.

Thus, the court will not take jurisdiction to render a declaratory judgment where there is no question of difference between the parties and both sides are asking for the same judgment, and the proceeding in reality is one to obtain the advice or opinion of the court, and no more. Burton v. Durham Realty & Ins. Co. (1924) 188 N. C. 473, 125 S. E. 3.

The court will not take jurisdiction to render a declaratory judgment as to whether a judgment of partition obtained on constructive service, was binding upon a certain person having an interest in the real estate, or her unknown heirs if she was dead, where such persons are none of them before the court and a decision of the question would not terminate the controversy, since it would not in any way bind such persons or their unknown heirs. Ezzell v. Exall (1925) 207 Ky. 615, 269 S. W. 752.

Questions already adjudicated by a court having jurisdiction of the sub