Nance v. Daniel

• Decision Date: 14 November 1936
• Docket Number: No. 11386.,11386.
• Citation: 189 S.E. 21,183 Ga. 538
• Parties: NANCE et al. v. DANIEL.
• Court: Georgia Supreme Court

183 Ga. 538

189 S.E. 21

NANCE et al.

v.DANIEL.

No. 11386.

Supreme Court of Georgia.

Nov. 14, 1936.

Syllabus by the Court.

1. In a suit for equitable relief, "the facts must be so plainly and fully and distinctly set forth as to inform the opposite party of the grounds of the plaintiff's action, to enable the jury to find an intelligible and complete verdict, and to enable the court to declare distinctly the law of the case." Upon application of this principle, the allegations and prayers of this petition are too general and indefinite to enable the court to take any action in the plaintiffs' behalf. It was not error to sustain the general demurrer.

2. The petition is also defective in that It alleges only the plaintiff's information and belief that the defendant expects and intends to comply with the Governor's proclamation, without averring as a fact that he expects and intends to do so.

3. Other reasons urged for affirming the judgment need not be discussed and decided. The court did not err in dismissing the suit.

BELL, J., dissenting.

Error from Superior Court, Troup County; L. B. Wyatt, Judge.

'Suit by A. S. Nance and others against A. B. Daniel. To review a judgment sustaining the defendant's demurrer and dismissing the petition, the plaintiffs bring error.

Affirmed.

A. Steve Nance and others filed a suit in the superior court of Troup county

against J. B. Daniel. The court sustained a general demurrer and dismissed the petition, and the plaintiffs excepted.

The petition, formal parts omitted, was as follows:

"2. Petitioners, and each of them, are citizens and taxpayers of the State of Georgia.

"3. The defendant is in possession of a large amount of public funds of the State of Georgia, amounting to several millions of dollars.

"4. On information and belief, petitioners say that the defendant has said public funds in currency in his possession.

"5. The defendant is attempting to get possession of other public funds of the State of Georgia, and will continue to attempt to get possession of said public funds.

"6. On February 17, 1936, the Governor of the State of Georgia issued a proclamation purporting to direct how the public funds of the State of Georgia should be paid out.

"7. Said proclamation is within the judicial cognizance of the court, and to it reference is made.

"8. Petitioners are informed and believe that the defendant expects to pay out the public funds of the State of Georgia in his possession, or part of them, in accordance with said proclamation of the Governor.

"9. Petitioners are informed and believe that it is the intention of the defendant, in paying out the public funds of the State, to comply in all respects with said proclamation.

"10. Petitioners allege that in many respects it appears from said proclamation that the payments therein ordered to be made by the Governor are not authorized by any appropriation made by the General Assembly.

"11. That defendant is wholly unable, from his personal funds or properties, to replace the amounts of public money in his possession.

"12. On information and belief, petitioners charge that a judgment of any large size could not be recovered from the defendant.

"13. Petitioners therefore allege that if the unlawful expenditure of public funds contemplated by the defendant is permitted to continue, he will be wholly unable to respond to his liability therefor.

"14. Petitioners and other taxpayers are without a complete and adequate remedy at law.

"15. While defendant is a resident of Troup County petitioners are advised and believe that he is at present spending all of his time in Fulton County, and that personal service should be effected there."

The petitioners prayed "That the defendant be enjoined from paying out any of the public funds of the State of Georgia in his possession, or which may come into his possession, except pursuant to valid appropriations existing and in effect at the present time, " and for process and service.

J. C. Savage, Bond Almand, and C. W. Bergman, all of Atlanta, for plaintiffs in error.

B. D. Murphy and Geo. L. Goode, Asst. Attys. Gen., and W. S. Mann, Sam'l D. Hewlett, and Hugh Howell, Sp. Asst. Attys. Gen., for defendant in error.

PER CURIAM.

We find no sufficient statement of facts to warrant any action by the court in the plaintiffs' favor. Assuming that we should take judicial cognizance of the proclamation of the Governor, as the plaintiff alleges we may and should do, we still have before us a petition in which, so far as unlawful acts are concerned, it is alleged only that the petitioners are informed and believe that the defendant expects to pay out the public funds of the state in accordance with the proclamation of the Governor, and that "in many respects it appears from said proclamation the payments therein ordered to be made by the Governor are not authorized by any appropriation made by the General Assembly." The only substantial prayer is that "the defendant be enjoined from paying out any of the public funds of the state of Georgia in his possession, or which may come into his possession, except pursuant to valid appropriations existing and in effect at the present time." The Code requires that, "All suits in the superior courts for legal or equitable relief or both shall be by petition addressed to the court, signed by the plaintiff or his counsel, plainly, fully, and distinctly setting forth the cause of action." Code, § 81-101. In Everett v. Tabor, 119 Ga. 128, 46 S.E. 72, it was said: "1. A complainant seeking extraordinary equitable relief must make a case which does not rest upon doubtfulor disputed principles of law, for an injunction will not usually be granted where his right thereto is not clear. 2. In all cases the complainant must establish the existence of the fraud or fact on which his right to interlocutory relief is based, and show the necessity for injunction, in order to preserve rights or to prevent irreparable injury." In Cothran v. Scanlan, 34 Ga. 555, it was said: "We recognize the doctrine that the same precision is not required in equity pleadings which is exacted at law; but, even in equity, the averments must be sufficiently certain that issue may be taken thereon. ' * * * The same precision, I know, is not required in equity pleadings that is exacted at law; yet, * * * [a petitioner] must state something substantial. The facts must be so stated as to be issuable. Defendant must be notified of the facts out of which the plaintiff's equity springs, and which he is to controvert.'" See, also, McGehee v. Jones, 10 Ga. 127; Tuggle v. Tuggle, 52 Ga. 475. "The statements of a bill must have, at least, such a degree of certainty, that if admitted to be true, some decree may be rendered upon them." Caldwell v. Dulin, 22 Ga. 4 (3). In the early history of this court, the following statement was made by Judge Nisbet in Murphy v. Lawrence, 2 Ga. 257: "In this State we have abolished the technical forms and requirements of the old English pleadings. England has followed our example in this respect, and has by rules and acts of parliament greatly simplified her pleadings. But in the reform which our statute has introduced, we are not to seek, because we shall not find, the abolition of this great law of pleading, to wit, the facts must be so plainly and fully and distinctly set forth as to inform the opposite party of the grounds of the plaintiff's action, to enable the jury to find an intelligible and complete verdict, and to enable the court to declare distinctly the law of the case." If the great jurist who delivered the opinion in that case could have had reference to the case now before the court, he could not have used language more fitly applicable to it, with reference either to the allegations of fact or to the prayers founded thereon.

The plaintiff alleges that "in many respects" the payments ordered by the proclamation are not authorized by any appropriation act. This amounts to a solemn admission in the pleadings that in some respects the payments would be au thorized. What is the duty of the court in such a case? Must it examine all of the various statutes which may be thought to contain appropriations, and then determine in what respects the proclamation may be followed and in what respects it may not be followed, without any suggestion in the petition as to what particular payments the plaintiff is seeking to have enjoined? The Constitution (article 3, § 7, par. 11) provides that "no money shall be drawn from the Treasury except by appropriation made by law, " and this means an appropriation by an act of the General Assembly. Certainly the proclamation of the Governor could not serve as a substitute for an appropriation act where none existed, and could not otherwise add to the authority of the State Treasurer in reference to the public funds. There are, however, as the petition concedes, certain continuing appropriations authorizing the disbursement of the public funds for various purposes without a general appropriation act. As an example of continuing appropriation law, we mention section 89-701 of the Code, which provides as follows: "The various sums of the annual salaries of all the officers of this State, whose salaries are fixed by law, are hereby appropriated annually to pay said officers until said salaries are changed by law." Another has reference to the cigar and cigarette tax, the net proceeds of which are "appropriated to the payment of pensions due or hereafter to be due to Confederate soldiers and their widows under such present or future laws as may grant such pensions." Code, § 92-2219. Many similar statutes could be cited; but it is sufficient for the present purpose to call attention to only one other provision of law among those of this type, namely, section 92-3604, which declares, that, "As to those departments, branches, agencies, commissions, and bureaus of the State government which under the law can only assess a sufficient amount of fees,...