174 Ga. 811 | Ga. | 1932
That portion of the Civil Code (1910), § 6062, material to the question declares that “sheriffs and coroners shall publish weekly, for four weeks, in some newspaper published in their counties respectively, — and if there be no such paper published in the county, then in the nearest newspaper having the largest or a general circulation in such county, — notice of all sales of land and other property executed by him.” The material part of that excerpt may be further reduced to the question of what is meant by “published in the county” and “the nearest newspaper.” In the present case the petitioner bases his claim upon two contentions: first, that his newspaper, Catoosa County Eecord, is “published in Catoosa County,” and second, that if it be decided that under the facts the Catoosa County Eecord is not “published” in Catoosa County, then there is no newspaper published in Catoosa County, and the Catoosa County Eecord is the “nearest newspaper” having the largest or a general circulation in the county.
1. The court did not err in sustaining the demurrers and in dismissing the case as to all three of the defendants. Mandamus is a remedy to require the performance of duty by public officers; but a condition precedent to the grant of that stringent remedy is that petitioner must show a clear legal right. The facts alleged in this petition do not show a clear legal right. Under our construction of the allegations of the petition, as applied to the law as it appears in the Code, § 6062, the Catoosa County Eecord is
2. We also hold that the allegations of the petition do not show that the Catoosa County Record, published at Eossville, demanded a finding that it was the “nearest newspaper.” The petition alleges that Eossville is within two miles of the Catoosa County line, and that the Dalton News is eight miles from the Catoosa County line. This court does not feel authorized to take judicial notice of any facts with regard to that matter not contained in the allegations of the petition. We do not think that
Judgment affirmed.