155 Ga. 13 | Ga. | 1923
Lead Opinion
(After stating the facts.)
We are of the opinion that the court erred in refusing a mandamus nisi. It is true that a mandamus absolute had been refused some two months before, upon similar petition and answer filed. That petition and answer and the judgment of the court are attached to this record, having been sent up as a part of the record on a petition filed therefor by the defendants in error. Manifestly it can not be considered a part of the record; it was not introduced .in evidence, and is not a part of the pleadings. Inasmuch as this former petition and answer thereto had never been made a part of the record in the present proceedings, the defendants in error could not avail themselves of the provisions contained in section 6149, par. 1, of the Civil Code, which relates to the subject of procuring additional record by the defendant in error, “who desires more of the evidence, or other parts of the record, or all of the evidence, or all of the record sent up.” The references to the record in the former case in the petition in this' case and in the judge’s order do not authorize this court to hold that there had been a former adjudication, or that that was an estoppel by judgment which would prevent the petitioner from maintaining the present proceedings. And inasmuch as we can not consider copies of the former petition, answer and judgment, there is nothing in the record to show that there has been an adjudication adverse to petitioner upon the issues here involved, or that he is estopped by the judgment in the former case, even though he fails to allege facts showing such a change in the circumstances as would authorize him to maintain a second petition for mandamus. To render the former petition for mandamus, the answer, and the judgment of the court effective as a former adjudication or estoppel conclusive against the petitioner in the present case, it should have been pleaded, or at least introduced in evidence.
We are now brought to the consideration of the question as to whether the application for mandamus was sufficient to require the issuance of a mandamus nisi, in answer to which the respondents would have been required to show cause. Section 2 of the act approved August 17, 1918, which is an act to provide for tick eradication throughout the State (Acts 1918,' p. 256), reads as follows: “ Sec. 2. Be it further enacted, that on or before the first day of April, 1919, the ordinary, county commissioners,
Judgment reversed.
Dissenting Opinion
dissenting. I agree to the proposition stated in the subdivision (a) of the first headnote; and for the reason therein stated it is proper for this court to sustain the motion to expunge from this record the transcript of the record in a former case between these same parties. A reviewing court can never consider anything not brought before the lower court.
But I think that a judge of the superior court may, and ought to, consider the allegations in a petition for mandamus before granting a mandamus nisi. The relief prayed for is extraordinary. The remedy sought is summary. The petition for mandamus invokes exercise of extraordinary powers. The exercise of these powers may be drastic and the consequences may be far-reaching. I recognize, of course, the general rule stated in the first division of the first headnote, to the effect that a former judgment in mandamus proceedings between the same parties is not conclusi.ve either as res adjudicata or estoppel, unless it is pleaded of submitted in evidence. But in my opinion this principle was not applicable in the consideration of the question as to whether a mandamus nisi should be granted by the judge of the superior court as and when the petition was presented. The rule just mentioned refers generally to instances where an action is sought to be barred by a plea of res adjudicata, or by such a course of conduct on the part of a party that he is estopped either in equity and good conscience or by law from the enjoyment of a right to which he might otherwise have been entitled. The rule is one which generally applies to the defendant, though in the course of an action it may be of use to the plaintiff.
However, in my opinion, the rule has no application in the present case, which is an instance of an ex parte presentation to a judge by the plaintiff of his petition for mandamus. The judge, in the exercise of sound judicial discretion, is to determine whether the case as presented by the plaintiff himself calls for the supervisory intervention of the law and superintendence and mandatory directions to the application of a summary remedy. The judge has before him only the plaintiff’s petition. By what shall he be guided ? Manifestly by the. statements of the petition, accepted as the truth, and by nothing else. The time for application of rules of pleading and evidence has not arrived. If he can understand the petition, and the statements therein are true, he must
It is true that if the defendants in this case had relied upon res ad judicata as a defense, a plea to that effect would have had to be accompanied by a copy of the entire record of the former adjudication pleaded in bar, and a plea of estoppel by judgment would have likewise been incomplete unless the record was ex-. hibited. But on the presentation of the petition for a mandamus nisi, a statement in the petition that- there had been a former judgment against the petitioner, which had not been excepted to, should, I think, have been treated (just as the trial judge treated it) as the statement of a fact, although upon a trial the statement as made would be demurrable, and if properly objected to should be stricken unless amended. It appears from the order of the trial judge in the case at bar, as set out in the bill of exceptions, that after the refusal of the court, on April 13, 1922, to grant a mandamus absolute in a former application as set forth in the plaintiff’s petition in the case at bar, the plaintiff sued out, on May 4, 1922, a bill of exceptions, which was certified by the trial judge, and that within thirty days from that time the petition in the present case was presented. This after the court had pointed out in his order (which is in the record) that the proposal of the county commissioners “to levy a tax for this purpose for the current year is reasonable and proper, and all that should be required, it not being alleged nor appearing that funds for this purpose have heretofore been raised by tax levy or are otherwise on hand,” and had withheld the grant of a mandamus absolute without prejudice to the right of the relator to hereafter renew the same should proper cause appear therefor.
For myself, reviewing the case by the light of the record and nothing else, I am prepared to hold that a judge of a superior court is clothed with such discretion (especially in a case of mandamus brought to compel the performance of a duty by officers 'under oath, and who are presumed by-law to be doing their duty) as that he is not required to again issue a rule nisi immediately upon the conclusion of a hearing of a former petition for manda
Without extending this dissent by reference to other portions of the petition, I am content to say that, in my opinion, the allegations of the petition itself (especially when construed, as they must be, most strongly against the pleader) did not require the grant of a mandamus nisi; and for that reason I think the judgment should be affirmed.
