Carter v. Land

• Court: Georgia Supreme Court
• Writing for the Court: GILBERT, J.
• Citation: Carter v. Land, 174 Ga. 811, 164 S.E. 205, 8935. (Ga. May 12, 1932)
• Docket Number: 8935.
• Decision Date: 12 May 1932
• Parties: CARTER v. LAND, Sheriff, et al.

164 S.E. 205

174 Ga. 811

CARTER v. LAND, Sheriff, et al.

No. 8935.

Supreme Court of Georgia

May 12, 1932

Syllabus by the Court.

Newspaper printed outside county held not "published" in county, within statute requiring legal advertisements printed in newspaper "published" in county (Civ. Code 1910, § 4, par. 9 and § 6062).

Allegation that newspaper was nearest county line in miles did not show it was "nearest to county," within statute regarding publication of legal advertisement (Civ. Code 1910 § 6062).

Under the facts alleged the court did not err in dismissing the petition on an oral motion in the nature of a general demurrer.

(a) Accepting the allegations as true, the "Catoosa County Record" was not "published" in Catoosa county.

(b) The allegations do not make clear that the "Catoosa County Record," published in Rossville, is the "nearest newspaper," as contemplated in the Civil Code 1910, § 6062.

Error from Superior Court, Catoosa County; C. C. Pittman, Judge.

Suit by C. E. Carter against E. F. Land, Sheriff, and others. Judgment for defendants, and plaintiff brings error.

Affirmed.

James H. Anderson, of Chattanooga, Tenn., Frank M. Gleason, of Rossville, and M. L. Harris, of Ringgold, for plaintiff in error.

T. G Head, of Ringgold, and Carter Pittman, of Dalton, for defendants in error.

GILBERT J.

That portion of the Civil Code 1910, § 6062, material to the question declares that: "Sheriffs and coroners shall publish weekly, for four weeks, in some newspaper published in their counties respectively,--and if there be no such paper published in the county, then in the nearest newspaper having the largest or a general circulation in such county--notice of all sales of land and other property executed by him." The material part of that excerpt may be further reduced to the question of what is meant by "published in the county" and "the nearest newspaper." In the present case the petitioner bases his claim upon two contentions: First, that his newspaper Catoosa County Record, is "published in Catoosa County"; and, second, that if it be decided that under the facts the Catoosa County Record is not "published" in Catoosa county, then there is no newspaper published in Catoosa county, and the Catoosa County Record is the "nearest newspaper" having the largest or a general circulation in the county.

1. The court did not err in sustaining the demurrers and in dismissing the case as to all three of the defendants. Mandamus is a remedy to require the performance of duty by public officers; but a condition precedent to the grant of that stringent remedy is that petitioner must show a clear legal right. The facts alleged in this petition do not show a clear legal right. Under our construction of the allegations of the petition, as applied to the law as it appears in the Code, § 6062, the Catoosa County Record is not published in Catoosa county. Publishing a newspaper, as contemplated by the General Assembly with reference to the statute in question, means something more than the mere distribution of a newspaper. It means more than having it entered at the post office for distribution in the mails as alleged. The meaning must be sought with reference to the subject with which it is connected. It depends very much upon the way in which it is used. The Civil Code 1910, § 4, par. 9, which provides rules for the construction of statutes, declares: "In all interpretations, the court shall look diligently for the intention of the General Assembly, keeping in view, at all times, the old law, the evil, and the remedy." The intention of the General Assembly undoubtedly was to aid in building up the locality to be served by the newspaper advertisements. Students of Georgia history are well aware of the fact that Georgians have always possessed a great degree of local pride and determination to patronize home industry and to build up local institutions. That has been clearly shown by legislation in many instances throughout the history of the state. Keeping these facts in view, we think that act was meant to bring about, by as much as legislation could contribute, the...