Dooly v. Gates

• Decision Date: 12 October 1942
• Docket Number: 14100
• Citation: 22 S.E.2d 730,194 Ga. 787
• Parties: DOOLY, Ordinary, et al. v. GATES.
• Court: Georgia Supreme Court

22 S.E.2d 730

194 Ga. 787

DOOLY, Ordinary, et al. v. GATES.

14100

Supreme Court of Georgia

October 12, 1942

Rehearing Denied Nov. 13, 1942.

Syllabus by the Court.

1. The motion to strike one of the assignments of error, because there is no sufficient identification of the paper referred to as part of the record, is denied.

2. Under the rulings in McGinty v. Chambers, 182 Ga 341, 343, 185 S.E. 513, the court erred in overruling the demurrer to the petition for mandamus. The subsequent proceedings being nugatory, it is unnecessary to consider other exceptions to rulings at the trial.

In a petition for mandamus, filed on February 28, 1941, by the successor publisher of the Murray Herald, who took over its ownership on January 1, 1938, against the ordinary, the clerk of the superior court, and the sheriff of Murray County, to require them to make his newspaper the official county publication in place of the Chatsworth Times which has been the official organ since 1936, the allegations show that since June 3, 1937, petitioner's Murray Herald has been qualified under all provisions of the statutes to be the official organ. As to the designated official organ Chatsworth Times, the allegations show in effect that this newspaper also is and was at the time of the filing of the petition qualified to be such organ, unless otherwise shown by the averments, that its printing was not done in Murray County, but was done in Gordon County, Georgia, from 1930, until January 15, 1941, since which time, before the filing of the petition, the printing, as well as other elements of publication, has been done in Murray County. Petitioner contends that, since the statutes require continuous printing for two years within the county, and his newspaper was so printed, but the official organ was not so printed, he was entitled as a matter of right to have his paper selected as the official organ. The county officials, who have not changed their original selection of the other newspaper, except to the overruling of their general demurrer to the petition as stating no cause of action, and as showing no violation of their official duty.

Under the ruling by this court as to the demurrer, it is unnecessary to state other facts and exceptions relating to the trial.

In a former decision in this case, dismissing as premature a writ of error excepting to the overruling of the demurrer to the petition, leave was granted 'to file the copy of the bill of exceptions in the superior court, as exceptions pendente lite.' Dooly v. Gates, 192 Ga. 483, 15 S.E.2d 729. In the present bill of exceptions, after an adverse final judgment, the same plaintiffs in error, who were the respondents in the trial court, now incorporate in the record their petition to the trial court that 'the copy bill of exceptions' in that court 'be certified as exceptions pendente lite,' and an order, which was manifestly entered on the paper that 'the within bill of exceptions is herely allowed and certified as exceptions pendente lite, and the clerk is hereby ordered to place same on record, and the same to become a part of the record in said case.' The bill of exceptions also recites this as a fact, and assigns error upon the overruling of the demurrer on every ground. The defendant in error moved in this court to strike such assignment of error, on the ground that the copy of the previous bill of exceptions cannot be considered, because it does not bear any official entry of filing by the clerk of the trial court, and therefore cannot be treated as the official copy of the previous bill of exceptions, and that there is no authority for any amendment with respect thereto. The plaintiffs in error submit a certificate by the clerk of the trial court, stating the date of original filing of the paper in question in his office, and the fact that there was an entry of filing thereon signed by the clerk as of such date, and that he himself drew a penmark through such entry, after the judge had ordered the paper certified as exceptions pendents lite, 'merely to prevent error in future copying the same,' and because on account of such order he 'did not think it necessary to include * * * in the record' this entry of original filing.

In the former decision in McGinty v. Chambers, supra, involving the rights of the same two newspapers whose rights are now involved, this court on the evidence in that case made the rulings quoted in the present decision, not only as to the eligibility of the Murray Herald at that time, but as to the ineligibility of the Chatsworth Times. That case arose on a petition for injunction by the owners of the Times against the county officials, to prevent them from designating the Herald as the official organ. The petition alleged, not only the ineligibility of the Herald, but the eligibility of the Times. Although the decision in that case shows that the trial court overruled a general demurrer to the petition, and that no exceptions were taken to that ruling, it was not stated what the grounds of the demurrer were, or whether they raised any question as to the eligibility of the Times, as alleged in the petition. The bill of exceptions in that case shows only that the 'defendants [the county authorities] interposed their demurrer, both general and special, to the petition;' that 'certain of their special demurrer was sustained, and was met by appropriate amendment,' and that 'the remaining ground of demurrer was overruled.' The demurrer was not specified or brought up with the record in that case; and nothing appears to show whether or not the eligibility of the Times was attacked. So far as the record indicates, the demurrer might have been wholly grounded on the proposition that the petition showed on its face that the Murray Herald was eligible for selection by the defendant county officials.

The owners of the Times, against whom the decision refusing an interlocutory injunction was made, after the hearing of evidence on both sides, brought the bill of exceptions to this court. There was no cross-bill of exceptions by the county officials attacking the ruling on the demurrer. There was no invoking by the plaintiffs in error of the favorable ruling on demurrer, as establishing any 'law of the case' in their favor; and no assignment of error that the refusal of the injunction was an abuse of discretion, on the ground that the court had sustained their petition by his ruling, and that they had proved their case as laid. They merely assiged error on the refusal of an injunction, as contrary to law under two specific assignments of error: (1) That 'the pleadings and evidence by plaintiff [the sworn petition as amended being introduced in evidence, besides oral testimony with direct and cross-examination] show that the Chatsworth Times has been the established official organ for Murray County for twenty years, and that there is no other newspaper which has been published at Chatsworth, Georgia, for a period of two years.' (2) That 'there is no pleading or evidence in the record [the sworn answer of the defendants being introduced in evidence] which shows that the Chatsworth Times has in any way or manner abandoned its position as the official organ for Murray County, it having continuously, since the period of its establishment, published the official advertising of Murray County, and offers to continue such publication of advertising within the rules required by law.'

The decision by the trial court in the McGinly case, dissolving the previous restraining order, to which the court referred in its order refusing an interlocutory injunction, recited, as the only reason for such dissolution, that 'after hearing evidence * * * the court is not convinced that the plaintiffs have a clear legal right to injunctive relief, and does not feel justified in setting aside discretionary acts of county officers acting under discretionary powers.'

Jesse M. Sellers, of Chatsworth, for plaintiffs in error.

W. B. Robinson, of Chatsworth, for defendant in error.

JENKINS Justice.

1. The motion by the defendant in error to strike the assignment of error on the overruling of a general demurrer to this petition for mandamus, on the ground that the copy in the record of the previously dismissed bill of exceptions, allowed by the decision of this court to be filed as exceptions pendente lite (192 Ga. 483, 15 S.E.2d 729), should not be treated as the official copy in the trial court, because the record does not show any entry of filing thereon by the clerk of that court, is denied. The paper in the record is sufficiently identified by the order of the judge entered thereon, certifying it as exceptions pendente lite. If any further identification were necessary, the subsequent certificate by the clerk that an actual entry of filing originally appeared on the paper and that he struck it by error affords a sufficient correction of the mistake, as authorized by the Code, § 6-1402. See Henderson v. Willis, 160 Ga. 638, 641, 128 S.E. 807; Kersey v. Barfield, 46 Ga.App. 442, 167 S.E. 925, and citations.

2. Under the Code, § 39-1101, a newspaper qualified to be selected by the designated county officials as the official organ of the county must be one which, at the time of its selection, is published in such county, if at such time a newspaper is published in the county. Under § 39-1103, no newspaper shall be made the official organ of any county even though published in the county, 'unless such newspaper shall have been continuously published and mailed to a list of bona fide subscribers for a...