Conyers v. Comm'rs Of Rd.S & Revenues Of Bartow County
| Decision Date | 07 August 1902 |
| Citation | 116 Ga. 101,42 S.E. 419 |
| Parties | CONYERS. v. COMMISSIONERS OF ROADS & REVENUES OF BARTOW COUNTY. |
| Court | Georgia Supreme Court |
COUNTIES — ACTIONS AGAINST — CHANGING NAMES OF PARTIES—SCALING ORDINANCE OF 1865.
1. A suit was brought against the inferior court of a given county in 1808. In 1874 a board of commissioners of roads and revenues was established for the county. In 1876 an order was passed, which, properly construed, made the board of commissioners in its corporate capacity a party defendant to the case. A judgment was recovered by the plaintiff in 1901 for a sum less than that sued for. A motion for a new trial, filed by the plaintiff, having been overruled, the case was brought to this court, and a motion was made to dismiss the writ of error upon the ground that there was no defendant in error named in the bill of exceptions, the board of commissioners of the county therein named not being such a corporation as was authorized, since the adoption of the constitution of 1877, to defend suits in behalf of the county. Held: (1) That the provision of the constitution of 1877 that all suits by or against counties shall be in the name thereof did not affect suits pending at the time of the adoption of the constitution; (2) that an amendment changing the name of the defendant from the board of county commissioners to that of the county would have been regular and proper; (3) that the failure, however, to make such an amendment would not cause the writ of error to be dismissed, when it appears that the case brought to this court in the bill of exceptions is, as to the names of the parties, identical in all respects with the case tried in the court below.
2. This being a suit to which the scaling ordinance of 1805 was applicable, and it being palpably apparent that the verdict rendered was not in accordance with the principles of justice and equity, the court erred in not granting a new trial at the instance of the plaintiff.
(Syllabus by the Court.)
Error from superior court, Bartow county; Geo. F. Gober, Judge.
Action by J. T. Conyers against the commissioners of roads and revenues of Bartow county. Judgment for plaintiff granting insufficient relief, and he brings error. Reversed.
Jas. B. Conyers and B. J. Conyers, for plaintiff in error.
A. S. Johnson, for defendant in error.
COBB, J. Joel T. Conyers, as administrator de bonis non with the will annexed of Bennett II. Conyers, obtained a verdict against the commissioners of roads and revenues of Bartow county; but, as the amount of the verdict was less than the plaintiff thought he was entitled to recover, he made a motion for a new trial, and, this motion being overruled, he excepted.
1. A motion was made to dismiss the writ of error upon the ground that there was no such corporation, copartnership, or natural person as the commissioners of roads and revenues of Bartow county, the defendant in error named in the bill of exceptions. In order to determine this motion it is necessary to give a brief history of this suit On February 19, 186S, Christopher B. Conyers, as executor of the will of Bennett H. Conyers, brought suit in the superior court of Bartow county against the "inferior court of said county." On January 29, 1876, the following order was passed in the case: "It appearing to the court that Russell H. Cannon, David V. Stokley, R. Hayne Dodd, John C. Aycock, and John H. Wikle have each been served with scire facias requiring them, as county commissioners, to show cause why they should not be made party defendants in said case to represent the county in said case, and no sufficient cause having been shown, it is ordered that said commissioners be made parties, and the question as to the costs of this proceeding remain open for further decision." On January 29, 1895, Joel T. Conyers, as administrator with the will annexed of Bennett H. Conyers, was made a party plaintiff in the case. The case has proceeded from the time it was instituted in the name either of the executor or of an administrator with the will annexed. Prom the date the suit was filed until January 29, 1876, the case proceeded against the inferior court of Bartow county, and from the date just mentioned to the present time it has proceeded against the commissioners of roads and revenues of Bartow county. It is now contended that the order above quoted did not have the effect of making the commissioners in their corporate capacity parties to the suit, and that, if it did have this effect, there has been, since the adoption of the constitution of 1877, no party defendant in the case; and that for these reasons the writ of error should be dismissed. The proper way to sue the county at the date this suit was instituted was to proceed against the inferior court of the county. Irwin's Code 1867, § 526. The inferior courts were abolished by the constitution of 1868. Code 1873, § 5126. In 1872 the general assembly passed an act which was entitled "An act to define the method of perfecting service in suits in this state where a county may be or is a party, " and it was provided that in all suits which had been or which might thereafter be commenced in the courts of this state in which a county was or might be a party service should be made upon the ordinary and clerk of the court of ordinary, if there was a clerk, and, if no clerk, then upon the ordinary alone, except that in those counties where the fiscal affairs of the county were committed to a board of commissioners service perfected upon a majority of the commissioners should be sufficient to all intents and purposes. Acts 1872, p. 39. There is nothing in this act which declares in terms who shall be named as the defendant in an action against a county. The business of a county, which was formerly conducted by the inferior court, was, after the adoption of the constitution of 1868, confided to the ordinary in all of those counties where the general assembly had not seen fit to create boards of commissioners of roads and revenues. In those counties where such boards were created, they were given jurisdiction over county matters. As, under the old law, suits against a county were in terms required to be brought against the inferior court, and as the ordinary or the board of county commissioners, as the case might be, took the place of the inferior court, it would be natural to presume that there-after the proper way to sue a county would be to sue either the ordinary or the board of county commissioners, as the case might be, in their official capacity. The codifiers of the Code of 1873 were evidently of this opinion, for there Is contained in that Code a provision in terms that suits must be brought against the ordinary. Code 1873, § 492. Although there may be no ruling on the subject, it is certainly true that the uniform practice followed prior to the adoption of the constitution of 1877 in suits against counties was to make the person or persons charged with the duty of attending to the affairs of the county the defendant or defendants to the suits. From the time that the inferior court was abolished in 1868 until March 2, 1874, the ordinary of Bartow county had charge of the affairs of the county. On the date just named an act was approved providing for the appointment of a board of commissioners of roads and revenues for that county, and it was provided in the act that this board should be a body corporate, with power to sue and be sued, plead and be impleaded, in all matters falling within its jurisdiction as therein defined, and liable only in all such suits in its corporate capacity as the representative of the county. Acts 1874, p. 332, § 12. Of course, all suits brought against the county of Bartow after the date of the passage of the act just referred to and before the adoption of the constitution of 1877 would be properly brought against the board of commissioners in its corporate capacity. This being true, we know of no reason why the board of county commissioners, as the representative of the county, should not be made a party to a case which had been brought against the inferior court as the representative of the county. It is said, though, that the order above quoted, when properly construed, did not make the board, in its corporate capacity a party defendant, but merely made the individuals named in the order parties to the case. We do not think this a correct construction to be placed upon the order. The language of the order is, in our judgment, sufficiently clear to indicate that the purpose of the court in passing the order was to make the board of county commissioners in its...
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