The court erred in directing the verdict sustaining the protest in the processioning proceedings.
DECIDED OCTOBER 5, 1940.
This is the second appearance of this case in this court.
Hayes v.
Wilson, 60 Ga. App. 731 (
5 S.E.2d 97). We refer to that decision for a statement of the case and what was
therein held, and especially to that part of the decision which holds: "There being no evidence touching the objection that the processioners were not legally appointed, this court will assume that the proceedings were not dismissed on that ground." On the second trial of the case, now under review, it was admitted that the processioners were appointed by the ordinary of Murray County, and not by the board of roads and revenues. After this admission was made the court directed a verdict on the sole ground that the processioners were illegally appointed. Under the ruling of
Tucker v.
Roberts, 151 Ga. 753 (
108 S.E. 222), it was error for the court to direct a verdict in favor of the contestant. The decision relied on by the defendant in error,
Braden v.
Martin, 136 Ga. 868 (
72 S.E. 342), is not in point, for the question in that case was whether the appointment by the board of commissioners of roads and revenues was illegal; and the court simply held that such appointment was not illegal. The question of de facto and de jure officers was not raised, as it was in the
Tucker case, supra.
Judgment reversed. Stephens, P. J., and Sutton, J.,concur.