Perry v. Bank of Ellijay

• Decision Date: 15 April 1936
• Docket Number: 10953.
• Parties: PERRY v. BANK OF ELLIJAY.
• Court: Georgia Supreme Court

187 S.E. 18

182 Ga. 768

PERRY v. BANK OF ELLIJAY.

No. 10953.

Supreme Court of Georgia

April 15, 1936

Rehearing Denied July 23, 1936.

Syllabus by the Court.

Under the allegations of the petition in this case, the court did not err in dismissing the action upon demurrer.

Error from Superior Court, Gilmet County; J. H. Hawkins, Judge.

Petition by Howard Perry for mandamus against the Bank of Ellijay. To review a judgment dismissing the petition on general demurrer, petitioner brings error.

Affirmed.

Smith Smith & Bloodworth, of Atlanta, Jesse M. Sellers, of Chatsworth, and Allison S. Prince, of Blue Ridge, for plaintiff in error.

A. H Burtz, of Ellijay, and John S. Wood, of Canton, for defendant in error.

PER CURIAM.

The court did not err in sustaining the general demurrer to the petition and dismissing the action. Applying the general rule that the allegations of the petition are to be construed most strictly against the pleader, the petitioner failed to state a cause of action when the petition is considered as a whole. The only prayer is that the depository, the county treasurer be required to set up a certain sum of money as a credit in favor of Gilmer county. It does not appear from any allegation of the petition that a defect of legal justice would result by the failure of the court to compel the making of this entry. "All official duties shall be faithfully performed; and whenever, from any cause, a defect of legal justice would ensue from a failure or improper performance the writ of mandamus may issue to compel a due performance if there be no other specific legal remedy for the legal rights." Code 1933, § 64-101. A petitioner is not required to anticipate a defense; but, if anticipated, such defense should be negatived. If the petition had alleged that $198,000 was received by the bank as county funds, and stopped, it might be inferred that the bank owed the county that much money still; but, when it goes further and alleges, as in paragraph 10, that sums of money have been paid for the county's benefit so as to discharge pro tanto the liability of the bank as treasurer, and does not say how much has been so applied for the benefit of the county, it fails to negative the defense previously anticipated in the petition, and does not show that any sum is actually due by the bank to the county. The petition does not show that the plaintiff or the county will lose any money if the entry setting up the $198,404.26 on the books of the bank is not made. The petitioner is not seeking to compel the bank to pay over money. He is attempting to...