135 Ga. 400 | Ga. | 1910
The writ of error complains of a ruling of the judge disallowing an amendment, and also of the judgment dismissing the case on demurrer. Isidor Gelders, F. R. Justice, and C. A. DeLang filed a petition against J. G. Knapp, who was alleged to be mayor, C. W. Hayes and other named persons, who were alleged to be aldermen, C. M. Wise, who was alleged to be clerk, and Herman Smith, alleged to be marshal of the City of Fitzgerald, and declared substantially the following: In pursuance of section 39 of the act approved August 22d, 1907 (Acts 1907, p. 609), incorporating the “City of Fitzgerald,” petitioners were elected and qualified as tax assessors for the year 1908, and in performance of the duties imposed on them b,y the provisions of the municipal charter they proceeded to assess for taxation the values of all real estate and personal property in the city, and made their return in terms of the law. No complaint of the assessment was filed, and the time for filing complaints had expired; but nevertheless “the said Mayor and Council” have illegally proceeded to revise the assessment so made by the assessors, and by so doing in some instances have doubled the assessed value of the real estate of taxpayers, including among them -plaintiffs, and in other instances reducing the assessed value, the effect of which would make the burden of city taxation fall unequally upon taxpayers. The prayers were to enjoin J. G. Knapp, mayor, and
1. The record brought to this court contains an answer which was filed, and likewise a petition which was presented to the judge by the City of Fitzgerald in its proper corporate name, for the purpose of obtaining a modification of the restraining order previously granted against the several officers designated in the statement of facts. But the allegations contained in these documents are not to be considered in testing the sufficiency of the petition on questions of demurrer. The complaint was not as to the right to enjoin the collection of State and county taxes. The petition, construed in its entirety, was an effort to enjoin the collection of municipal taxes on a raised assessment alleged to be illegal and made without authority,. rather than upon an assessment made by the city assessors, which was alleged to be legal and in accordance with the provisions of the city charter. By section fhirty-nine of the city charter provision was made for the election of city tax assessors by the city council, and their duties and powers defined. Among other things it was declared: “That said assessors shall be required to deliver their tax returns as fast as completed to the city clerk, who shall immediately transcribe them oh the city tax digest, and all returns and the digest shall be prepared and completed not later than April 1st of each year. All complaints, if any should arise, against city
2. Complaint was made that the judge refused to allow the petion to be amended in such manner as to make the City of Fitzgerald a party in its proper corporate name. The corporation was not a party. In order to make it so, it was essential that it be sued in its proper corporate name. Town of East Rome v. City of Rome, 129 Ca. 290 (58 S. E. 854), and citations. Certain persons who were named as officers of the municipality were sued as individuals. They were proper parties. It-was alleged that they were acting under color of office, but proceeding in an illegal manner, and under such circumstances as to render injunction'an appropriate remedy against them. The acts of these officers which was sought to be enjoined related to the collection of the city’s revenue, and the municipality was interested in the cause. The suit was in equity, where all persons at interest ought to be parties. Civil' Code, § 4844. In all such suits, where two or more persons sue or are sued, and the name of a person who ought to be joined as a plaintiff or defendant is omitted, the person so omitted may he made a party by amendment. Civil Code, § 5103. The case of Tarver v.. Dalton, 134 Ca. 462 (67 S. E. 929), was not a suit in equity, but a mandamus proceeding, and the rule above announced was there affirmed. Tt was error to disallow the amendment.
Judgment reversed.