Atlanta Coach Co v. Simmons, 10589.

• Decision Date: 12 September 1935
• Docket Number: No. 10589.,10589.
• Parties: ATLANTA COACH CO. et al. v. SIMMONS, Court Clerk.
• Court: Georgia Supreme Court

181 Ga. 67

181 S.E. 762

ATLANTA COACH CO. et al.

v.SIMMONS, Court Clerk.

No. 10589.

Supreme Court of Georgia.

Sept. 12, 1935.

Syllabus by Editorial Staff.

Error from Superior Court, Fulton County; John D. Humphries, Judge.

Petition by the Atlanta Coach Company and others against J. W. Simmons, Clerk of the Superior Court of Fulton County. To review a judgment sustaining general and special demurrers to the petition, plaintiffs bring error.

Transferred to the Court of Appeals.

The Atlanta Coach Company et al. filed a petition (denominated by plaintiffs as a money rule) against J. W. Simmons, clerk of the superior court of Fulton county, and prayed for judgment against Simmons, requiring him to pay to the plaintiffs certain funds consisting of money which had been paid to the clerk. They contended that no service was rendered for these moneys, inasmuch as they were payments of fees for recording proceedings or writs in civil cases which were dismissed before any record was made. The various plaintiffs who joined in this proceeding set forth statements of the fees paid under the circumstances alleged. It was alleged that movants and each of them had demanded of respondent the amounts collected from them in these cases which were dismissed before the record of the proceedings; and that movants did waive, in writing, the recording of the proceedings. They prayed for a rule absolute, requiring the respondent to pay to movants "the amounts due on the excess costs by respondent collected for services not theretofore performed by him by virtue of his office"; and that, pending a hearing on the rule nisi, "the respondent and his deputies be stayed from recording causes settled and dismissed before record thereof was made." The defendant filed general and special demurrers to the petition. The court sustained the general demurrer and certain of the special grounds of demurrer, and the plaintiffs excepted.

F. L. Breen and Louis Foster, both of Atlanta, for plaintiffs in error.

Ralph H. Pharr and Dorsey, Shelton & Pharr, all of Atlanta, for defendants in error.

Syllabus Opinion by the Court.

BECK, Presiding Justice.

Under the allegations of the petition which was dismissed on demurrer, the case is a money rule. No affirmative equitable relief is prayed. The prayer that, pending a hearing on the rule nisi, the "respondent and his deputies be stayed from recording cases settled and dismissed before record thereof was made, " seeks, not for affirmative equitable relief, but...