Atlanta Coach Co v. Simmons, 25244.

• Decision Date: 18 March 1937
• Docket Number: No. 25244.,25244.
• Citation: 190 S.E. 610,55 Ga.App. 532
• Parties: ATLANTA COACH CO. et al. v. SIMMONS.
• Court: Georgia Court of Appeals

55 Ga.App. 532

190 S.E. 610

ATLANTA COACH CO. et al.

v.SIMMONS.

No. 25244.

Court of Appeals of Georgia, Division No. 1.

March 18, 1937.

Syllabus by Editorial Staff.

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

Proceeding by the Atlanta Coach Company and others against J. W. Simmons, clerk of the superior court of Fulton county. Judgment was rendered against the plaintiffs who brought error to the Supreme Court, which transferred the cause to the Court of Appeals (181 Ga. 67, 181 S.E. 762).

Judgment affirmed.

Conforming to answers to the certified questions to Supreme Court, 190 S.E. 610.

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

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

MacINTYRE, Judge.

This action was brought by one hundred or more plaintiffs. It was denominated by them as a "money rule" against J. W. Simmons as clerk of the superior court of Fulton county, praying that the court issue a rule nisi requiring the defendant to show cause why he should not be required to pay over to the plaintiffs certain amounts alleged to be due. The claim of each plaintiff arose out of a separate and distinct transaction, although each claim presents a similar set of facts and the right of each plaintiff to recover depends on the same questions of law. It appears from the petition that each one of the plaintiffs was, on various dates, defendant in separate and distinct suits brought by different plaintiffs in Fulton superior court. Each suit was dismissed, and in each case the defendant (plaintiff in the instant case) paid to the clerk a certain amount of money as fee for the recording of the pleadings in that particular suit. At the time each suit was dismissed and the recording fee paid to the clerk, he had not recorded any of the pleadings. The position of the present plaintiffs is that our statute of 1881 (Ga.Laws 1880-81, p. 93; Code, § 24-2715), in reference to the recording of pleadings in a suit, provides that recording shall not be made in cases that have been "dismissed and settled before said record is made, " and therefore that each plaintiff had paid to the defendant money for services not required by law and for which he was not entitled to collect, and that he should be required to pay over to each plaintiff the amount paid to him. The defendant filed general and special demurrers to the petition. The judge sustained the general demurrer and many of the special...