182 Ga. 341 | Ga. | 1936
J. Eoy McGinty Sr. and J. Eoy McGinty Jr., owner and editor respectively of tbe Chatsworth Times, on July 3, 1935, filed their petition against Eobert E. Chambers as clerk of the superior court, and B. H. Wilbanks as sheriff, to
The judge refused an injunction, and the plaintiffs excepted.
The Code of 1933, § 39-1101, provides that “The sheriffs and coroners shall publish weekly, for four weeks, in some newspaper published in their counties respectively, — and if there be no such paper published in the county, then in the nearest newspaper having the largest or a general circulation in such county, — notice of all sales,” etc. Hnder this section it is the duty of such officers to publish legal advertiseménts in a newspaper published in the county. Braddy v. Whiteley, 113 Ga. 746 (2) (39 S. E. 317); Dollar v. Wind, 135 Ga. 760 (70 S. E. 335). However, § 39-1101 must be construed in connection with § 39-1103, which declares: “No journal or newspaper published in this State shall be declared or made the official organ of any county for the publication of sheriff’s sales, ordinary’s citations, or any other advertising commonly known and termed ‘ official or legal advertising’ and required by law to be published in such county official
The uncontradicted evidence shows that the Chatsworth Times has been continuously published and mailed to a bona fide list of subscribers for twenty years and for a like period of time has published the legal advertisements of the county. While the evidence also shows that the actual mechanical work has been done at the Calhoun plant in Gordon County for the past two years, under a proper construction of §§ 39-1101 and 39-1103 the evidence demands a finding that the Chatsworth Times is established, and has been established, for the past two years in Murray County, and is legally entitled to continue to receive the legal advertisements until some other newspaper entitled to be the official organ is so designated. Coffee v. Ragsdale, 112 Ga. 705 (37 S. E. 968); Braddy v. Whiteley, Dollar v. Wind, supra; Rish v. Clements, 21 Ga. App. 287 (2) (94 S. E. 318).
It appears from the pleading and the evidence that two other newspapers having general circulation in the county are nearer by miles to the county than the Chatsworth Times; and it is contended
Whether or not the plaintiffs had an adequate remedy at law by mandamus to compel the defendants to 'publish the legal advertisements in the Chatsworth Times, it appears that a general demurrer to the petition was overruled, and no exception to that ruling was taken. Under these circumstances, the petition seeking equitable relief in the nature of an injunction, the ruling on the demurrer became the law of the case, and the plaintiffs were entitled to proceed in equity.
Judgment reversed.