Moody v. Board of Com'rs of Roads and Revenues of Appling County

• Decision Date: 24 July 1922
• Docket Number: 13398.
• Parties: MOODY ET AL. v. BOARD OF COM'RS OF ROADS AND REVENUES OF APPLING COUNTY ET AL.
• Court: Georgia Court of Appeals

113 S.E. 103

29 Ga.App. 21

MOODY ET AL. v. BOARD OF COM'RS OF ROADS AND REVENUES OF APPLING COUNTY ET AL.

No. 13398.

Court of Appeals of Georgia, Second Division

July 24, 1922

Syllabus by the Court.

Where prior to the hearing of a proceeding for the validation of county bonds under the provisions of section 445 et seq. of the Civil Code (1910), the required statutory publication giving notice of the date of hearing has been duly made "the fact that the hearing was had before the judge on a day other than that named in the published notice does not render the judgment illegal, when it further appears that the case was regularly continued by the court from the day named in the publication to the day on which the hearing was had." Wimberly v. County of Twiggs, 116 Ga. 50 51, 42 S.E. 478.

Where such a case had been duly continued from time to time by previous orders of the court, the last of which continued the hearing until a fixed future date, the court was not without jurisdiction to pass upon and validate the bonds at an earlier date, where, as appears from the record, the order continuing the cause to the future date had never been spread upon the minutes of the court and was still in the breast of the court, and the term of court was still open when the modified order fixing the date of actual hearing was made and when such hearing was had, and where the interveners who desired to be heard did appear and were actually heard on the date of trial. Bowen v. Wyeth, 119 Ga. 687, 46 S.E 823.

The court properly overruled the demurrer filed by the interveners to the petition for validation. The order and notice of election to determine the question as to the issue of the bonds, given by the commissioners of roads and revenues of the county in the following language, was a sufficient compliance with the provisions of section 440, Civ. Code 1910, requiring the purpose for which the bonds were to be issued to be stated: "The proceeds to be used in improving and constructing the public roads in and out of said county. The roads first to be improved being the road known as the Staffords Ferry road leading from Baxley to the Tillman district and to the point of location of the proposed bridge across the Altamaha river at Upper Sisters Bluff, upon said bridge being constructed; the road known as the Piny Bluff road; the road known as the Old Screven road leading by Old Homesville and to the point of the intersection of said road with the Surrency and Blackshear road; the road now generally traveled leading from Baxley to Alma; and the road from the Jeff Davis to the Wayne county line recently designated by the state highway board as a state aid road; the funds used in the construction of said road and the Staffords Ferry and Alma roads to be under the direction of the state highway board, and to be refunded to the county under the terms and, as provided in the act recently passed creating the state highway board."

(a) The ground that the petition did not show that legal notice as to the date of hearing the petition had been published, as required by section 450 of the Civil Code of 1910, is without merit, since under the statute this requirement does not become operative until after the filing of the petition.

It is unnecessary to determine whether the effect of the amended highway department act of August 10, 1921 (Ga. Laws 1921, p. 199), amending the original act of 1919 reorganizing the highway department (Ga. Laws 1919, pp. 242, 252), was to take away from the respective counties of the state the right under article 6 of the original act, to be reimbursed by the highway department for funds expended upon their roads under the issuance of county bonds. The notice calling an election, dated March 26, 1920, after describing other roads upon which the bond proceeds should be expended, contained this additional clause, "and the road from the Jeff Davis to the Wayne county line recently designated by the state highway board as a state aid road, the funds used in the construction of said road and the Staffords Ferry and Alma roads to be under the direction of the state highway board, and to be refunded to the county under the terms and as provided in the act recently passed creating said state highway board." It appears that the election was held on May 12, 1920, that the petition for validation was filed and served, rule nisi issued, and notice of hearing made by the clerk in June, 1920, fixing the date of hearing for June 21, 1920. The validity of the election and the proceeding for validation, therefore, could not be affected by the subsequent act of the Legislature, approved August 10, 1921.

There was no error in admitting in evidence four issues of the county newspaper publishing official notices, offered for the purpose of showing the required statutory publication of the notice of election, upon the ground that "the original order was admissible, and the newspaper was not admissible, and was irrelevant and hearsay." Schley v. Lyon, 6 Ga. 530 (6); Barrett v. Butler, 54 Ga. 582, 583; Southwestern R. Co. v. Papot, 67 Ga. 675 (2), 686.

The state tendered in evidence also the original order of the commissioners calling the election, and extracts from the original minute book of the commissioners containing resolutions providing for such election. The interveners objected to their introduction, upon the ground that they were originals and that only certified copies would be admissible. They contended that the admission of this evidence was error under sections 5753, 5798, and 5799, of the Civil Code of 1910. The paper and minute book were properly verified and were recognized and admitted by the interveners to be the originals. Held, while later decisions of ...