175 Ga. 779 | Ga. | 1932
On March 18, 1920, a Butts County warrant (No. 317) was issued to Mary R. Griffin. It was assigned several times, and finally became the property of the Citizens & Contractors Bank, transferee of the Lithonia Banking Company. The petition in this case, by Citizens & Contractors Bank, was presented on December 17, 1931. It was against Dodson, county treasurer, Howell, Hodges, and Jinks, then constituting the board of commissioners of roads and revenues of Butts County, together with Maddox, who during the years 1927 to 1930, inclusive, had been a member of that board, and Jackson National Bank. The purpose of the petition was to enforce by writ of mandamus the payment of the balance due upon the warrant. There were also prayers for holding the officers in contempt, and for other relief. The trial judge, in his opinion, stated the controlling issue as follows: “Is the plaintiff entitled to relief other than is granted by the order of October 9, 1928?” And ruled thereon as follows: “The court holds that
Attached to the petition as “exhibit 1” is a petition entitled “John Martin et al. vs. Butts County and J. 0. Gaston, Sole Commissioner of Roads and Revenues of Butts County. Petition for Mandamus in Butts Superior Court. February Term, 1918.” It continues as follows: “And now comes Lithonia Banking Co., a banking corporation under the laws of Georgia, and shows to the court: 1. Your petitioner shows that it is interested in the subject-matter of the above suit, and therefore asks to be allowed to intervene in said case.” It then sets out the ownership by Lithonia Banking Company of Butts County warrant No. 317 in language identical with the description in the present petition. It alleges presentation of the warrant to the treasurer of the county, and refusal to pay by reason of “no fund with which to pay the same.” The petitioner prayed “that it be allowed to intervene in the above-stated case, and to be made a party thereto, and that its said claim share with the other claims set forth in the petition and the amendments thereto, in the above-stated case, in the funds raised by taxation under order of the court.” The genuineness of this warrant and the correctness of the amount as an indebtedness against the county was admitted by Gaston, sole commissioner of roads and revenues. The petition of John Martin et al. does not appear in the record, and there are no means by which this court can ascertain what were its allegations and prayers. Judgment on the petition of Lithonia Banking Company allowed it to intervene, and the court further ordered “that the order heretofore made in said case be amended as to include the said warrant held by Lithonia Banking Company, and that the said J. 0. Gaston, commissioner, pay the said warrant, together with interest thereon, as provided on the face of said warrant, out of the funds which may be realized from said levy, and in accordance with the terms of said order and judgment of the court.” This-judgment was dated January 2, 1926.
The original judgment rendered in the proceeding brought by John Martin et al. is not in the record, and its terms can not be ascertained. It does appear from the judgment rendered on the
Subsequently Lithonia Banking Company brought another action for mandamus against Maddox and others, alleging that by act of the legislature (Ga. Laws 1925, p. 566) a board of commissioners of roads and revenues for Butts County was created in lieu of the sole commissioner, that a judgment absolute in the mandamus proceeding to compel the sole commissioner to pay the warrant that had formerly been issued was an adjudication that said warrant was a valid liability against the county and should be paid by it, and that the commissioners refused to obey the terms of the mandamus absolute. It alleged that the county was insolvent, and that without a special tax levy its debts could not be paid; and that the county officers had refused to perform their official duty in paying off the obligation and to obey the orders of the court with reference thereto.
The judge, to whom the case was submitted for decision without a jury, sustained the demurrer to the answer, and made the mandamus absolute, on June 27, 1927, requiring defendants to levy a special tax to pay the warrant. That judgment was affirmed. Maddox v. Lithonia Banking Co., 166 Ga. 616 (144 S. E. 107).
Subsequently the judge of the superior court rendered another judgment, “John Martin et al. v. Butts County. Mandamus in Butts Superior Court--Term, 1918.” It recited: “Judgment of the court on application for order to enforce the rule absolute in the above-stated case at the instance of certain intervenors. At Chambers, Forsyth, Ga., October 9, 1928.” The names of the intervenors were stated, but Lithonia Banking Company was
This judgment included in the mandamus “such other warrants or legal obligations of the county that may be included in this petition and exhibit thereto, incurred and existing prior to 1917; and that if said levy be found insufficient in any one year or more years, the same shall [be] increased at the discretion of the levjdng officer or officers for such year in sufficient sum to meet one fourth of said obligations, so that the levy of four years will discharge all of said obligations.” This judgment further recited: “It is admitted by respondents in open court that 11 of the warrants listed in the petitions now before the court are comprised under the within terms of the foregoing rule subsequent to the passing of the above-stated order: The Lithonia Banking Co., as transferee of warrant No. 317 drawn upon the county treasurer of Butts county by said Gaston, commissioner, March 18, 1920, for the principal sum of $5916.98, and bearing interest at the rate of 7% per annum from date, filed its intervention and was made a party in the principal
The last-mentioned judgment recites that the total amount of adjudicated indebtedness against the county is approximately $75,-000, and it is admitted that the total values of said county are $3,-470,963. It is alleged elsewhere that the total adjudicated indebtedness covered by judgments of mandamus absolute amounts to $87,000, and that the tax values of the county amount to $3,300,-000. The last-named judgment states reasons for the rendition, and accordingly orders a modification of the judgment rendered June 27, 1927, to the effect that “all of the listed adjudicated county warrants held by petitioners, as well as warrant No. 317 held by the Litlionia Banking Co., as well as all other warrants listed as adjudicated in the main case of John Martin et al. v. Butts County, which are included in the orders of the court herein quoted, requiring the payment of the same by a special tax levy for said purpose to be paid off as rapidly as possible, and that the said named J. W. Maddox, B. IT. Hodges, and G. W. Jinks, commissioners of roads and revenues for said County of Butts, and .their successors in office, be and they are hereby ordered and required to levy a tax of 150 per cent, of the State tax for the year 1928, and each succeeding year thereafter, upon all of the taxable property of every nature, character, and kind in Butts County, out of which shall be paid, first current expenses of the county, and second the remainder left after paying said current expenses, to be applied ratably to said adjudicated indebtedness, as well as such other indebtedness as may be legally due by said county or is adjudicated as such, including both principal and legal 'interest, until said indebtedness is fully paid off and discharged.”
Error is assigned on this judgment, because (a) Lithonia Banking Company was not a party to the proceeding and therefore that neither it nor its transferee, Citizens and Contractors Bank, is bound by the order of modification in so far as it affects warrant
It is true that after having received a copy of the judgment, Lithonia Banking Company might have filed some proceeding requesting a rehearing on the question before the trial judge, or it might have sued out a writ of error thereon; but certainly in the suing out of a writ of error the bank would have been compelled to take the case as it stood, and could have raised no question not passed upon by the trial judge. Manifestly, in such circumstances, the complainant would have moved under difficulties not required by the law of the land. Certainly, in such' event, the complainant would be subjected to the necessity of submitting to a hearing after judgment instead of before judgment. It is also contended that after the rendition of the modifying judgment the bank accepted two payments upon the warrant, and that the acceptance of such payments constituted an estoppel. When the bank held a liquidated claim against the county, already adjudicated to be valid and binding by the court, the acceptance of a partial payment on that warrant could not justly be held to estop the bank from insisting upon the terms of the existing and binding judgment in its favor. This ruling necessarily controls the judgment in the case now before this court. The error of the trial court in this particular invalidates all other rulings upon which there are assignments of error. The judgment as a whole must be
Reversed.