Wilkinson v. Cheatham, 43 Ga. 258

Wilkinson v. Cheatham

43 Ga. 258 | Ga. | 1871

Warner, Judge.

In 1856 the General Assembly passed an Act providing for the removal of the county site of Lee county from the town of Webster to Starksville, and also provided, in said Act, for the appointment of three commissioners to assess the damages sustained by the owners of town lots in the town of Webster, and as soon as convenient thereafter, to give to such owners certificates of such assessment of damages for loss sustained in consequence of such removal of the county site, and provided that said certificates, having an indorsement of the amount due by a majority of the Justices of the Inferior Court, shall be paid by the treasurer of the county, out of the removal fund of said county, created by the Act, and authorized the Inferior Court of Lee county to levy a tax, not exceeding fifty per cent, per annum, on the State tax, to constitute a removal fund for the payment of said certificates. On the 31st December, 1869, Cheatham obtained a mandamus nisi from the Judge of the Superior Court, requiring the Ordinary of Lee county to shew cause why he should *261not proceed to levy and have collected a tax sufficient to pay two certificates held by the petitioner, amounting to $526 00, besides interest due thereon. The mandamus nisi was filed in the Clerk’s office, 14th February, 1870. On the trial of the case in the Court below, the petitioner exhibited in evidence two certificates, specifying in the face thereof the amount due for the damages sustained by the parties named therein, in consequence of the removal of the town of Webster, under the Act of the General Assembly, which were signed by the commissioners, and on the back of each certificate the names of three Justices of the Inferior Court were indorsed in their official capacity. One of the certificates was issued to the petitioner for damages done to his property, the other was issued to Watterer for damages done to his property, which latter certificate had been assigned and transferred by Watterer to the petitioner. On the final hearing of the ease in the Court below, the mandamus nisi was made absolute, and the Ordinary was ordered to levy and collect a tax sufficient to satisfy the petitioner’s demand; whereupon, the counsel for the Ordinary excepted, ou various grounds, as set forth in the record. The Act of the General Assembly, authorizing the tax to be levied and collected, was a constitutional and valid Act.

Mandamus was the proper remedy for the enforcement of a right, accruing to the petitioner, under a statute of the State, which was not barred by the Statute of Limitations until after the expiration of twenty years from the time of the assessment of the damages by the commissioners, under the Act.

The official signatures of a majority of the Justices of the Inferior Court, on the back of the commissioners’ certificates, without more, was a sufficient indorsement by them of the amount due, as specified therein, according to the true intent and meaning of the Act.

The assignment and transfer of the certificate by Watterer to the petitioner, vested the right and title thereto in him as *262his assignee, and he was entitled to be paid the amount due thereon, as well as the interest due on both certificates.

Judgment affirmed.