Center v. Arp

32 S.E.2d 308 | Ga. | 1944

The petition, alleging distinct causes of action against different defendants, is demurrable for multifariousness and misjoinder of parties.

No. 15025. NOVEMBER 22, 1944. Nine citizens of the town of McCaysville brought a petition for quo warranto and injunction against certain persons named as the mayor and council of said town. The petition sought to oust them as such officers because, as the petition alleged, they were elected under the act approved February 18, 1941, creating a new charter for McCaysville, and under the act approved March 7, 1935, amending the charter of McCaysville, and because each of said acts was void because no election had been held for their approval or disapproval as required under the general law codified in sections 69-101 and 69-102 of the Code. The petitioners also sought an injunction against the enforcement of an ordinance passed by said mayor and council against keeping hogpens closer than three hundred feet from any residence within said city, because the same was arbitrary and unreasonable and destroyed their property in their hogs. The defendants demurred to the petition as being multifarious, in that it sets out separate and distinct causes of action; and also because it does not show that the defendants were not the legally elected mayor and council, or that the ordinance is unreasonable and arbitrary, and for that reason void. On the hearing, the court sustained the demurrer, and dismissed the petition as amended. To this judgment, sustaining the demurrer and dismissing the petition, the plaintiffs excepted. While, under the uniform practice act of 1887 (Code, § 37-901), the joining against the same defendants of legal and equitable rights and remedies which are connected with or dependent upon each other does not render the petition subject to the objection of duplicity or multifariousness (Hawkins v. Georgia Alabama Railway,108 Ga. 784, 33 S.E. 682; Grimmett v. Barnwell, 184 Ga. 461,463, 192 S.E. 191, 116 A.L.R. 257), still a legal petition in quo warranto against named defendants as the incumbent mayor and councilmen is subject to the objection, made by demurrer, of multifariousness and of a misjoinder of actions, where the petition not only seeks to oust the defendants from the offices of mayor and councilmen, as having been chosen at an illegal election and therefore illegally installed, but is also brought against the defendants, or their "officers and agents," in the capacity of a police court; and where the equitable remedy of injunction is sought to prevent such defendants and their officers or agents, acting in their capacity as a police court, from trying the plaintiffs who had been arrested under an ordinance alleged to be void because passed by the said illegal mayor and council, and also because the ordinance is in itself unreasonable and confiscatory in character and therefore unconstitutional. "A petition wherein separate and distinct causes of action against different defendants are set forth is demurrable on the ground of multifariousness and misjoinder of parties." Van Dyke v. VanDyke, 120 Ga. 984, 988 (48 S.E. 380), and numerous cases there cited. In the instant case, the petition sought to join two separate and distinct causes of action, as well as to proceed against the defendants in two separate and independent capacities (Arnett v. Board of Commissioners, 75 Ga. 782 (2), 785;Hamilton v. Speck, 166 Ga. 667, 668, 144 S.E. 204), or, stating the case most strongly against the pleader where the allegations are in the disjunctive, against officers and agents of the defendants. Doyal v. Russell, 183 Ga. 518 (3, 4) (189 S.E. 32). The issue in a quo warranto proceeding is the title of the incumbents to the office from which they are sought to be ousted. Code, § 64-201. Sweat v. Barnhill, 170 Ga. 545,549 (153 S.E. 364); McCarthy v. McKinney, 137 Ga. 292,297 (73 S.E. 394). And while the legal effect of such a judgment in such a proceeding against the incumbent would be to prevent and to nullify any attempted official act on the incumbent's part effected after the judgment, if adverse to defendants, has been rendered, such a proceeding does not affect the previous official acts of the incumbent, and bears no relation thereto. Wilson v. Harris, 170 Ga. 800 (8) (154 S.E. 388); Bors v. Davis, 6 N. J. Misc. 793 (142 A. 760). Nor is the question whether the ordinance is in itself arbitrary and unreasonable in any wise related to the wholly different and independent question as to who is entitled to the office which the incumbents hold.

Since, upon the question of multifariousness and misjoinder of causes of action raised by the demurrer, the defendant failed to amend so as to elect as to which cause of action he would pursue, and as to which defendants he would proceed against (Armstrong v. Southern Railway Co., 29 Ga. App. 418, 116 S.E. 31), the court did not err in sustaining the demurrer of the defendants on this ground; and this being true, the other questions raised by the petition and demurrer cannot properly be adjudicated.

Judgment affirmed. All the Justices concur.