116 Ga. 101 | Ga. | 1902
Joel T. Conyers, as administrator de bonis non with the will annexed of Bennett H. Conyers, obtained a verdict against the commissioners of roads and revenues of Bartow county; but as the amount of the verdict was less than the plaintiff thought he was entitled to recover, he made a motion for a new trial, and this motion being overruled, he excepted.
1. A motion was made to dismiss the writ of error, upon the ground that there was no such corporation, copartnership, or natural person as the commissioners of roads and revenues of Bartow county, the defendant in error named in the bill of exceptions. In
The business of a county which was formerly conducted by the inferior court was, after the adoption of the constitution of 1868, confided to the ordinary in all of those counties where the General Assembly had not seen fit to create boards of commissioners of roads and revenues. In those counties where such boards were created, they were given jurisdiction over county matters. As under the old law suits against a county were in terms required to be brought against the inferior court, and as the ordinary or the board of county commissioners, as the case might be, took the place of the inferior court, it would be natural to presume that thereafter the proper way to sue a county would be to sue either the ordinary or the board of county commissioners, as tbe case might be, in their official capacity. The codifiers of the Code of 1873 were evidently of this opinion; for there is contained in that code a provision in terms that suits must be brought against the ordinary. Code of 1873, § 492. Although there may be no ruling on the subject, it is certainly true that the uniform practice followed prior to the adoption of the constitution of 1877, in suits against counties, was to make the person or persons charged with the duty of attending to the affairs of the county the defendant or defendants to the suits. From the time that the inferior court was abolished in 1868 until March 2, 1874, the ordinary of Bartow county had charge of the affairs of the county. On the date just named an act was approved providing for the appointment of a board of commissioners of. roads and revenues for that county; and it was provided in the act that this board should be a body corporate, with power to sue and be sued, plead and be impleaded, in all matters falling within its jurisdiction as therein defined, and liable only in all such suits in its corporate capacity as the representative of the county. Acts 1874, p. 332, § 12. Of course, all suits brought against the County of Bartow after the date of the passage of the act just referred to, and before the adoption of the constitution of 1877, would be properly brought against the board of commissioners in its corporate capacity. This being true, we know of no reason why the board of county commissioners as the representative of the county should not be
It will thus be seen that at the time of the adoption of the constitution of 1877 the plaintiff had pending against the County of Bartow a suit which in all respects complied with the law in regard to suits against counties prior to the adoption o.f that instrument. That constitution provided that “ all suits by or against a county shall be brought in the name thereof.” Civil Code, § 5924. It has been held that this provision was self-executing and needed ■no legislation to carry it into effect, and that a suit brought since the adoption of that constitution against the county commissioners of a given county was not properly brought, and no amendment could be made substituting the name of the county as a defendant. Jackson v. Dougherty, 99 Ga. 185, and cases cited; Glaze v. Bogle, 105 Ga. 295, 298, and cases cited. It has never been held that the effect of this provision in the constitution was to cause to abate a pending suit which had been properly brought before the adoption of the constitution, and it would be necessary to hold this in order to support the contention of the defendant in error. The suit was properly brought against the inferior court. The board of county commissioners was properly made a party defendant in 1876, to take the place of the inferior court. The county was sued in 1868 and sued in the name in which the law required it to be sued. By the order of 1876 the suit was amended so as to make it proceed in the name in which counties.were then authorized to be sued. It would certainly have been better if an amendment had been offered, after the adoption of the constitution, changing the name of the defendant to conform to the rule there laid down. But as the county had been properly sued in an authorized name and a suit was pending against it in that name, we know of no reason why the plaintiff may not proceed against the county in that
2. This was a suit on a bond issued by the County of Bartow on October 27, 1863, and the principal sum named in the bond was $9,765. Thebond was payable on January 1,1864, and bore interest at the rate of seven per cent, per annum from date. This controversy has been pending in the courts of this State for nearly forty years, and the case has several times been before this court. See Pritchett v. Inferior Court, 46 Ga. 462; Pritchett v. Commissioners, 93 Ga. 736; Same v. Same, 94 Ga. 731; Commissioners v. Conyers, 102 Ga. 588; Same v. Same, 108 Ga. 559. When the case was last before this court, in the 108 Ga., it was held that the liability of the county on the bond sued on had been settled by the former decisions of this court, that the bond was a valid and binding contract, that the only question open in the case was what
The verdict was for $150, with interest from October 27,1863, at seven per cent, per annum. There was uncontradicted evidence that the consideration of the bond was 3,265 bushels of corn sold to the county by the plaintiff’s testator; and the agreement between
Judgment reversed.