Adams v. Town of Weston
| Decision Date | 11 December 1935 |
| Docket Number | 10993. |
| Citation | 183 S.E. 69,181 Ga. 503 |
| Parties | ADAMS v. TOWN OF WESTON et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Mandamus will lie, under the facts alleged in the petition to require a municipality to pay a balance due on the salary of the petitioner, its former clerk, where such sum has been approved for payment by its mayor and council and appropriate entry made on its minutes.
2. The court erred in sustaining the demurrer and dismissing the petition.
Error from Superior Court, Webster County; W. M. Harper, Judge.
Petition for mandamus by G. W. Adams against the Town of Weston and others. To review a judgment dismissing the petition on general demurrer, plaintiff brings error.
Reversed.
G. Y Harrell, of Lumpkin, for plaintiff in error.
Stephen Pace, of Americus, for defendants in error.
G. W Adams filed a petition for mandamus against the town of Weston, by and through its mayor and council, to require the payment to him of the sum of $68.46, alleged to be due him as a balance on his salary as clerk of said town. He alleged that at a meeting of the former mayor and councilmen his claim was considered and approved, and that he was issued a duebill in the said amount, signed by the mayor and clerk; that the mayor and council also instructed the clerk to let the minutes show that the town of Weston was due, among others, the said sum to the petitioner, and that such appears upon the minutes; that the said sum was not then paid, because necessary funds were not on hand or in its treasury, but that since then the town of Weston has had sufficient money to pay the petitioner, has levied a tax for the year, and is collecting taxes and will have sufficient funds out of which his demand can be paid; that he has demanded payment from the present mayor and council, but that they refused to pay his claim. He prayed that a mandamus nisi be issued, calling upon the town of Weston, by and through its mayor and councilmen, to show cause why the claim of the petitioner should not be paid out of any money on hand or which might thereafter be received by the town, and that, if sufficient money be not on hand, the said mayor and council be required to levy a tax upon property in said town sufficient to discharge his claim; that upon the hearing a mandamus absolute be granted; and that he have such relief as the facts might warrant. The defendant filed general and special demurrers on the ground, among others, that the petition did not set forth a cause of action. The court sustained the general demurrer without passing on the special demurrer. The petitioner excepted.
The demurrer is lengthy and contains many similar propositions repeated in different language. The material parts necessary to be considered are: (1) That mandamus does not lie in the present case, because the petitioner has an adequate remedy at law; and (2) that if the suit could otherwise proceed, it should be brought against the treasurer of the town of Weston. It is well established that mandamus will not lie when there is an adequate and specific remedy at law. It is available only when it is exclusive. Mattox v. Board of Education, 148 Ga. 577, 581, 97 S.E. 532, 5 A.L.R. 568. But it has also been ruled, in Hogansville Banking Co. v Hogansville, 156 Ga. 855, 860, 120 S.E. 604, 606, that: ...
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...N.W. (2d) 643. Moreover, the city is the real party in interest. State ex rel. Kansas City v. Trimble, 322 Mo. 360, 368; Adams v. Town of Weston (Ga.), 183 S.E. 69, 71. (4) The judgment of this court in the former suit between the parties is not res judicata and is no bar to this action. (a......
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State ex rel. Associated Holding Co. v. City of St. Joseph
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