42 S.E.2d 731 | Ga. | 1947
1. The petition of the administratrix of the estate of the deceased Deputy Marshal of the Municipal Court of Atlanta, alleging that he was illegally removed from office before the expiration of his four-year term, and that he did not resign or abandon the said office, and seeking to require the Chairman of the County Commissioners to issue warrants for the salary of the said officer for the remainder of the term, alleged a cause of action and was not subject to the general demurrer.
2. Where the evidence introduced upon the trial in behalf of the petitioner showed that the officer ceased to perform the duties of the office and engaged continually in the performance of the duties of another position, and showed an order of the judges of the court removing the said officer, but failed to show that the deceased officer did not acquiesce in the order of the judges or abandon his office, the evidence was insufficient, and the court did not err in entering a judgment of nonsuit.
The defendant demurred upon general grounds and made answer denying the material allegations of the petition and pleaded that the deceased had abandoned the office. The demurrer was overruled. Upon the trial a judgment of nonsuit was granted, to which the petitioner excepted. The defendant by cross-bill of exceptions assigns error on the judgment overruling his general demurrer.
The evidence introduced by the petitioner was the following order, petitioner's exhibit No. 10: "Pursuant to an order passed by the Board of Judges on December 31, 1925, the services of the following men are dispensed with as of January 31, 1926: Mr. Green K. Dennis, Mr. S. L. Dallas, Mr. Chas. L. Poole, Mr. M. A. Witt. (Signed) L. Z. Rosser, Chief Judge, J. B. Ridley, Judge, L. F. McClelland, Judge, C. L. Pettigrew, Judge, T. O. Hathcock, Judge." Also the petitioner's exhibit No. 4, being an excerpt from the minutes of the Board of County Commissioners, as follows: "The Chairman of the Board reported that the Sheriff of Fulton County had appealed to him for the appointment of an additional bailiff to serve in the Criminal Court of Atlanta, and that effective March 1, 1926, he had authorized the Sheriff to employ Mr. Chas. F. Poole to serve as such bailiff at a salary of $150 per month, as provided in act approved August 19, 1925. Upon motion of Commissioner *257 Johnson, the action of the Chairman was adopted and made the other [order?] of the Board."
William G. McRae, attorney for the petitioner, testified that he had made an inspection of the records of the Municipal Court of Atlanta relating to the severing of the connection of Charles F. Poole with the office of deputy marshal; that the only order he found was the petitioner's exhibit No. 10 above set forth; and that there was no other record dealing with Poole's leaving the office of deputy marshal.
The petitioner testified that she was the widow of Charles F. Poole and had qualified as temporary administratrix of his estate. She remembered when he worked as Deputy Marshal of the Municipal Court of Atlanta. He came home one night and said that he had lost his job, that he had been fired. She was working at the time for Atlanta Terminal Company. She went to Mr. Hixon and asked him if he would give Poole a position. Mr. Hixon gave Poole a position in a few days, and he went to work as a clerk in the baggage room at the Terminal Station. Poole worked there between the time he was discharged from the municipal court and the time when he went to work as bailiff in the criminal court. She did not know the date when Poole left the municipal court, nor did she know the circumstances of his leaving except what he told her. Poole worked a month or two at the Terminal Station, and then worked in the sheriff's office until Sheriff Lowry died. The Sheriff died some time before Poole died. 1. The allegations of the petition as amended were sufficient to withstand the general demurrer, and the court did not err in overruling the same.
2. The writ of mandamus is available in a proper case for the enforcement of a private right and the faithful performance of official duties. Code, Title 64. To entitle one to mandamus a clear legal right to have the act performed must appear. Adkins
v. Bennett,
Judgment affirmed on the main bill and cross-bill ofexceptions. All the Justices concur.