City Of Macon v. Herrington, 14923.

Citation32 S.E.2d 517
Decision Date01 December 1944
Docket NumberNo. 14923.,14923.
PartiesCITY OF MACON et al. v. HERRINGTON.
CourtSupreme Court of Georgia

32 S.E.2d 517

CITY OF MACON et al.
v.
HERRINGTON.

No. 14923.

Supreme Court of Georgia.

Dec. 1, 1944.


.

[32 S.E.2d 518]
Syllabus by the Court.

1. The Code, § 64-110, relating to writs of error in mandamus cases, when properly construed in connection with other laws, does not prevent the defendant against whom a verdict is returned in a mandamus case from filing and prosecuting a motion for a new trial; nor does it require that a bill of exceptions, complaining of the refusal of a new trial, shall be tendered within twenty days from the judgment granting the mandamus absolute, where such judgment was entered, as in this case, before the motion for a new trial was filed; but in such case the bill of exceptions will be in time if it is tendered within twenty days from the judgment overruling the motion for a new trial. The decision to the contrary in Board of Veterinary Examiners v. Ruffin, 147 Ga. 441, 94 S.E. 555, is reviewed and overruled.

(a) Nor in such a case is it necessary to file exceptions pendente lite to the judgment granting the mandamus absolute.

(b) The motion to dismiss the writ of error is denied.

2. By the pension act of 1939, applicable to the City of Macon, it was declared in part as follows: "To the widow and child or children of any member [of the fire department] who dies from causes not attributed to his active duties in the departments, providing that such member shall have been a member of such department for ten (10) years prior to the date of his death, the trustees shall authorize and direct payment, in equal monthly installments, as follows: (1) To the widow twenty dollars ($20.00) a month until her death or re-marriage." Held, that the phrase "any member" as used in this provision is not limited to active members but will include either a pensioned member or a member on sick leave.

(a) Moreover, the evidence in this case showed without dispute that the de-

[32 S.E.2d 519]

ceased member had not been pensioned, but was merely on sick leave, at the time of his death.

3. Under the terms of the statute, the trustees of the pension fund were not acting in a judicial or quasi-judicial capacity in refusing the claim of a widow of a member of the fire department asserted under the foregoing provision, and therefore their action would not be subject to review by certiorari.

4. Nor are the trustees exempt from the writ of mandamus to compel payment of a pension to a widow in accordance with such provision, where it appears without dispute from the pleadings and the evidence that she is entitled to such pension, and that they have declined or refused to pay the same to her.

5. Under the preceding rulings as applied to the facts, the judge did not err in striking the amendment to the defendants' answer, the verdict as directed was demanded by the evidence, and it was not error to refuse a new trial.

Error from Superior Court, Bibb County; Malcolm D. Jones, Judge.

Mandamus by Mrs. John T. Herrington against the City of Macon and T. F. Car-starphen and others as members of the police and fire committee of such city, J. F. Hudson and others as members of the pension committee of such city, and Frank Branan as city treasurer, to compel defendants to pay petitioner a pension allegedly due her as the widow of John T. Herring-ton, deceased. Judgment granting a mandamus absolute was entered upon a directed verdict for plaintiff, and defendants bring error.

Affirmed.

Mrs. John T. Herrington filed a suit for the writ of mandamus, against the City of Macon; T. F. Carstarphen and four others as members of the police and fire committee of the City of Macon; J. F. Hudson and two others as members of the pension committee of the city; and Frank Branan, as its treasurer. The petitioner sought mandamus to compel the defendants in their official capacities to pay to her a sum alleged to be past due, and $20 per month to become due in the future, which sums she claimed as a pension due to her as the widow of John T. Herrington, deceased, under the terms of an act approved March 9, 1939, Ga.L.1939, p. 1149, providing for the payment of pensions to members of the police and fire departments of the City of Macon, and their dependents, it being alleged that the said John T. Herrington was a member of the fire department at the time of his death.

The petition contained among others the following allegations: The petitioner's husband had been a member of the fire department continuously since December 22, 1927, but he obtained sick leave on May 20, 1940, and continued sick and on such leave until his death, which resulted from cancer, on October 29, 1940. He was never fully informed as to the seriousness of his illness, and expected "to return to active duty on said fire department, having never applied for a retirement status on pension." The City of Macon paid his full salary of $140 for the first month after he became sick, and one-half of his salary for each month thereafter through September, 1940, deducting the tax of $3.50 out of such amounts. After he was unconscious on October 28, 1940, the chief of the fire department delivered to the petitioner $75 in cash, representing that it was a pension payment for Mr. Herrington which would be due November 1, 1940. After his death the City of Macon paid to the petitioner, as his widow, one "pension payment" in the amount of $20. At the time of his death the said John T. Herrington left no children who were below the age of twenty-one.

The petitioner further alleged: Before filing this suit, she "presented her claim before the board of trustees of the pension fund, and * * * after a hearing thereon her claim was declined." By amendment, she alleged that in refusing to pay the petitioner a pension as the widow of John T. Herrington, deceased, said board of trustees acted arbitrarily, and such refusal constitutes an abuse of the powers granted to them by the pension act.

The defendants filed an answer, denying most of the allegations of the petitioner, and contending that they were not liable. By an amendment, they alleged that the hearing and decision of the board of trustees, and refusal of the petitioner's claim, were either (a) quasi-judicial in character, from which the writ of certiorari was a complete and adequate remedy at law, foreclosing the right of the plaintiff to pursue the extraordinary remedy of mandamus, "and/or" (b) were in pursuance of the act

[32 S.E.2d 520]

of 1939, providing a new right and a remedy therefor, and since the act did not expressly provide for a review of their decision, said decision was final.

In the same amendment, they alleged that the petitioner can not recover without showing that her husband at the time of his death was a "member" of the fire department within the meaning of the act, and that the word "member" as used therein means an "active member, " whereas the plaintiff's husband at the time of his death was a retired, pensioned, and inactive member of said fire department. This amendment was allowed and ordered filed subject to motion to strike, and was later stricken.

After both sides had introduced evidence and closed, the court overruled a motion of the defendants to direct a verdict in their favor, and, instead, directed a verdict in favor of the petitioner, upon which verdict a judgment granting a mandamus absolute was entered. The defendants excepted pendente lite, complaining of the order striking the amendment to their answer as above stated, and of the ruling of the judge refusing to direct a verdict in their favor and directing a verdict in favor of the petitioner. The defendants also filed a motion for a new trial which contained the usual general grounds, but which was later amended by the addition of several special grounds, presenting the same contentions that had been presented in the amendment to their answer and their exceptions pendente lite. The judge overruled the motion for a new trial, after which the defendants brought the case to this court.

The defendant in error, Mrs. Herrington, moved to dismiss the writ of error, because it appears from the record that no exceptions pendente lite were taken to the judgment granting the mandamus absolute and the final bill of exceptions was not presented until more than 20 days after the rendition of such judgment. The facts pertinent to this motion are as follows: The verdict as directed was rendered on January 14, 1944. The mandamus judgment was entered on January 18. The defendants' motion for a new trial was filed on January 27, and was overruled on April 14. The bill of exceptions was certified on April 28. In the bill of exceptions, error was assigned on the judgment refusing a new trial, and on the exceptions pendente lite, and also on the judgment granting a mandamus absolute, but there were no ex ceptions pendente lite to the last mentioned judgment.

The act of 1939, on which the petitioner based her claim, amended a previous act by striking section 70 thereof and inserting a new section 70, consisting of numerous subsections, some of which are as follows:

"Section 70 (a). There is hereby created a special fund to be known as the 'Firemen and Police Pension Fund, ' said fund to be deposited with the City Treasurer, but kept separate and apart from the general funds of the City of Macon; said fund to be used exclusively for the purpose provided for in this Act, which fund shall be collected, administered, and disbursed according to the provisions of this Act.

"(b). From and after the enactment of this Act the City of Macon shall levy upon the monthly salary of every member of said departments in active service at the time of and after the passage and approval of this Act, a tax of three dollars and fifty cents ($3.50) per month, and the City Treasurer shall deduct the amount of the tax hereby levied from the salaries of such members. * * *

"(e) The term 'firemen and policemen, ' when used in this Act, shall mean any member of the fire or police departments, and properly...

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