Ficklen v. Mayor and Council of City of Washington

• Decision Date: 27 February 1914
• Parties: FICKLEN v. MAYOR AND COUNCIL OF CITY OF WASHINGTON ET AL.
• Court: Georgia Supreme Court

81 S.E. 123

141 Ga. 441

FICKLEN v. MAYOR AND COUNCIL OF CITY OF WASHINGTON ET AL.

Supreme Court of Georgia

February 27, 1914

Syllabus by the Court.

The mayor and council of the city of Washington and A. G. Cozart made application for a writ of mandamus directed to F. H Ficklen, alleging that the respondent, former treasurer of the city, refused, after demand duly made, to deliver to said Cozart, the treasurer of the city elected after the removal of respondent, certain funds belonging to the city, which had come into his hands while treasurer, and were still held by him. In response to the application the respondent, among other defenses, denied that at the time the mandamus nisi was granted on the petition (which was prior to its filing in office) any demand had been made upon him to turn over any funds, or that he had refused to do so. Upon the hearing, in vacation, the judge granted a mandamus absolute, and the respondent excepted. Held mandamus absolute should not issue to compel the performance of an act of the character of the one here involved, unless the relator has demanded and the respondent refused to do the act which it is sought to compel (unless there were facts existing making such demand unnecessary) before mandamus nisi was issued againt him, where the mandamus nisi was issued prior to the filing of the petition therefor.

The answer of respondent denied that there had been any demand on him for the funds in his hands, or refusal by him to turn them over, before the issuance of the mandamus nisi against him, and, the pleadings and evidence upon the hearing before the judge showing that this was a disputed question of fact and not showing conclusively that demand was unnecessary, the judge was without authority, in vacation, to grant a mandamus absolute; the respondent upon such hearing contending that disputed issues of facts were involved and demanding that they be submitted to a jury. Civil Code 1910, §§ 5444, 5445; Sylvania & G. R. Co. v. Hoge, 129 Ga. 734, 740, 741 59 S.E. 806.

Error from Superior Court, Wilkes County; B. F. Walker, Judge.

Mandamus by the Mayor and Council of the City of Washington and another against F. H. Ficklen. From an adverse judgment respondent brings error. Reversed.

See, also, 81 S.E. 123.

Colley & Colley and J. M. Pitner, all of Washington, Ga., for plaintiff in error.

Wm Wynne and W. A. Slaton, both of Washington, Ga., for defendants in...