Dunn v. Campbell

146 Ga. 226 | Ga. | 1916

Hill, J.

The ordinary of Murray County applied to the judge of the superior court for a writ of mandamus to compel the commissioners of roads and revenues of that county and their clerk to turn over to the applicant the records, boobs, vouchers, etc., in their hands as such commissioners. It was alleged in the petition that the board of commissioners of roads and revenues had been abolished by an act of the legislature approved August 14, 1916 (Acts 1916, p. 474), and ratified by the people of Murray County at an election held in pursuance of the act on September 12, 1916; and that by the terms of this act the ordinary of the county became entitled to the custody and control of the books, etc., belonging in the office of the board so abolished. The judge of the circuit issued a mandamus nisi against the respondents, returnable before him in vacation, requiring the plaintiffs to show cause why the books, etc., in their hands should not be turned over to the applicant as prayed for. At the interlocutory hearing the respondents appeared by counsel, and made defense by demurrer and verified answer. The answer made an issue of fact as to the material allegations of the petition, especially as to the demand; and counsel for respondents moved that the court return the ease for trial before a jury, and refused to submit the alleged issues of fact to the judge. The court stated that he would hear evidence, and did; after which he made the mandamus absolute. Held, that under the answer of the respondents, denying that any demand had been made upon them for the books, etc., and the pleadings and evidence upon the hearing before the judge showing that this was a disputed question of fact, and not showing conclusively that demand was unnecessary, the judge was without authority; in vacation, to grant a mandamus absolute. Ficklen v. Mayor &c. of Washington, 141 Ga. 440 (81 S. E. 123). Judgment reversed.

November 23, 1916.

Mandamus. Before Judge Fite. Murray superior court. October 14, 1916.'

D. W. Blair and Jesse M. Sellers, for plaintiffs in error. All the Justices concur.