Morris v. City Council of Augusta

• Decision Date: 14 July 1948
• Docket Number: 16234.
• Citation: 48 S.E.2d 855,204 Ga. 26
• Parties: MORRIS et al. v. CITY COUNCIL OF AUGUSTA et al.
• Court: Georgia Supreme Court

48 S.E.2d 855

204 Ga. 26

MORRIS et al. v. CITY COUNCIL OF AUGUSTA et al.

No. 16234.

Supreme Court of Georgia

July 14, 1948

Syllabus by the Court.

1. The trial court did not err in denying the motion to dismiss the answer, which was entirely responsible to the allegations of the petition.

2. While a stranger without any interest needing protection in a cause is not entitled to intervene therein, one who actually has an interest in the subject matter of an equity cause may ordinarily intervene to protect his rights; and where such an intervention is allowed, the intervenor may adopt as his own the allegations of the answer of other defendants and be made a party defendant.

3. The evidence demanded the verdict, and other alleged errors could not have affected the result in this case.

W. S Morris and others, alleging themselves to be taxpayers and citizens of the City of Augusta, filed an equitable petition against the City Council of Augusta, W. D. Page, mayor, John B. Kennedy, and certain officials of the City of Augusta seeking to enjoin the payment of a pension of $4000 per annum to John B. Kennedy as a retired commissioner of public safety. Among other things, the petition alleged that on April 30, 1946, while the salary of John D. Kennedy was $5000 per annum, the City Council of Augusta passed an ordinance, No. 1533, amending previous ordinances fixing salaries by striking the amount of all salaries therein set forth, and reset the salaries of various officers and employees, and therein fixed the salary of John B. Kennedy at $8000 per annum; that on the same date John B. Kennedy presented a written request to the city council that he be permitted to retire from active service and enjoy the privilege of a pension as provided by law, and furnished evidence of having served the City of Augusta for more than the required 25 years; also that on the same date the city council adopted a motion granting him the right of retirement, and thus sought to provide a pension of $4000, based upon one-half of his salary. The petitioners alleged that the act fixing the salary of John B. Kennedy at $8000 and permitting his retirement upon a pension of $4000 is illegal and void, for the reason that the ordinance granting the salary of $8000 had not become effective at the time he retired, as it had not been advertised as required by the city Code.

The defendants answered, denying the material allegations of the plaintiffs' petition, and further alleging, among other things, that in January, 1946, John B. Kennedy, whose pension the plaintiffs sought to enjoin, had served for thirty years as a member of the fire department of the City of Augusta and as commissioner of public safety; and in January, 1946, the city council, in recognition of the increased cost of living and the long service of the defendant Kennedy, desired to raise the salary of the defendant Kennedy above the $5000 per annum fixed by the legislature in 1941; that the city council requested the legislature to remove the limitation of $5000 fixed by the legislature in 1941, and by an act approved January 31, 1946, the legislature did remove the limitation upon the salary of the defendant Kennedy; that thereafter, on April 17, 1946, the city council of Augusta, by ordinance No. 1531, attached as an exhibit to the answer, increased the salary of the defendant Kennedy to $8000 per year, and on and after the passage of this ordinance the salary of the defendant Kennedy was the sum of $8000 per year; that on April 30, 1946, two weeks after the passage of the ordinance increasing the salary of the defendant Kennedy, the defendant Kennedy notified the city council of Augusta that he desired to retire pursuant to the acts of the General Assembly of Georgia and the charter of the City of Augusta, which authorized his retirement after twenty-five years of service at one-half his salary; that this request for retirements was received by the City Council of Augusta and acted upon while ordinance No. 1531 was in full force and effect and before ordinance No. 1533, attacked by the plaintiffs' petition, had either been introduced or passed by the City Council, and ordinance No. 1533, introduced and passed after the retirement of the defendant Kennedy had been approved and had become effective, could in no wise affect the pension rights of the defendant Kennedy; that the defendant Kennedy had made regular contributions to a pension fund, in compliance with acts of the legislature, contributing 1 1/2 per cent of his salary from 1925 to 1945 and 3 per cent of his salary from 1945 to the date of his retirement.

The defendants filed a general demurrer to the plaintiffs' petition. The trial court sustained this demurrer; and on review this court (Morris v. City Council of Augusta, 201 Ga. 666, 40 S.E.2d 710) reversed the trial court, holding that the petition, taken to be true as against a general demurrer, set forth a cause of action for injunction.

When this case was called for trial, the defendants W. D. Page, as mayor of the City of Augusta, and John B. Kennedy were present and represented by counsel. The other defendants were not present and were not represented by counsel. The defendants Page and Kennedy announced ready for trial. Thereupon the plaintiffs voluntarily dismissed the defendants Page and Kennedy as parties-defendant over the protest and objection of these defendants. The plaintiffs then moved to dismiss the entire answer filed by the defendants upon the grounds that the answer was not responsive to the allegations of the petition and the defendants were not present defending the case. This motion was overruled. The plaintiffs then introduced as evidence ordinance No. 1533, rested their case, and moved for a directed verdict, which the trial court denied. John B. Kennedy, who had been stricken as a party defendant, filed an intervention, in which he alleged that he was a party vitally interested in the subject matter of the litigation, being the party receiving the pension sought to be enjoined by the plaintiffs; and the intervenor adopted, as a part of the intervention, the allegations of the answer filed by the defendants. The plaintiffs orally demurred to and moved to strike the intervention. This motion was denied, and the trial court ordered the case tried on its merits.

The plaintiffs offered in evidence their original petition and ordinance No. 1533, passed by the city council of Augusta on April 30, 1946, together with the application of John B. Kennedy for retirement and the resolution of the city council of Augusta approving the retirement. The defendant John B. Kennedy offered in evidence ordinance No. 1531, adopted by the city council of Augusta on April 17, 1946, fixing the salary of the commissioner of public safety at $8000 per annum, and also the entire proceedings of the city council of Augusta at a meeting held on April 17, 1946, at which the ordinance was adopted. He also introduced in evidence issues of the Augusta Herald, showing publication of ordinance No. 1531 on April 18, 19, and 22, 1946. He also introduced the application for retirement of John B. Kennedy, with entries of the city attorney, comptroller and civil service commission thereon, and also the entire proceedings of the city council of Augusta at a meeting held on April 30, 1946, which showed that the request for retirement on pension was submitted by John B. Kennedy and approved by the city council, and subsequently ordinance No. 1533 was introduced and adopted by the city council. John B. Kennedy testified in his own behalf, giving details as to the date of his employment by the City of Augusta, his tenure of service, his contributions to a pension fund; and he testified that his salary was raised to $8000 per annum on April 17, 1946, and on April 30, 1946, he decided to retire without discussing the matter with anyone and filed an application for retirement. He stated: 'I reached a decision to retire after thinking about it for two or three days and didn't retire until five minutes to six, April 30. That is the first time I reached a decision to retire. I did not attend a meeting of any caucus or conference of the city council. I have never discussed a salary increase with any member of the council or the mayor at any time. I didn't discuss my retirement until after it was read to council. I had my secretary to write it. I went to supper and then I went to council meeting and when the council meeting started I gave it to the clerk of council to read. The mayor didn't know anything about it. No member of council knew anything about it. No member of my family or nobody in Augusta knew anything about it except myself and yourself [meaning his attorney].'

The trial resulted in a verdict for the defendants. The plaintiffs' motion for new trial was overruled and the plaintiffs excepted, also assigning error on rulings made during the progress of the case, exceptions to these rulings having been preserved by exceptions pendente lite.

Pierce Bros., of Augusta, for plaintiffs in error.

Wm. P. Congdon and Congdon & Harper, all of Augusta, for defendants in error.

WYATT Justice.

1. The trial court did not err in denying the motion to dismiss the answer filed by the defendants in the court below. The answer was entirely responsive to the petition, denying each and every material allegation; and the answer, together with the amendment thereto,...