Powell v. Hansard

• Decision Date: 14 February 1950
• Docket Number: No. 16930,16930
• Citation: 206 Ga. 505,57 S.E.2d 677
• Parties: POWELL, Ordinary v. HANSARD.
• Court: Georgia Supreme Court

Page 677

57 S.E.2d 677

206 Ga. 505

POWELL, Ordinary v. HANSARD.

No. 16930.

Supreme Court of Georgia.

Feb. 14, 1950.

Syllabus by the Court.

The allegations of the petition were insufficient to show a clear legal right in the plaintiff to the relief of mandamus.

Abner Hansard filed a petition for mandamus against J. Frank Powell, as Ordinary of Dooly County, it being alleged: The plaintiff's attorney applied to the defendant for a copy of the application for marriage license, the license, and the officiating minister's certificate, certifying to the marriage of L. J. Allen and Barbara Ann Hansard, the minor daughter of the plaintiff. The defendant violated the law, in that he failed to post the notice required of the application for marriage license; he failed to post any notice, and issued the license in less than five days. At the time of the marriage Barbara Ann Hansard was a minor, fifteen years of age, and the marriage license was issued without the consent of the parent or parents of such minor. As a result of the conduct of the defendant, he is liable in damages under the provisions of the Code, § 53-208, and the plaintiff has filed suit against the defendant and his bondsmen. The certified copies are required to be introduced in evidence in the trial of that case. 'When said J. Frank Powell certified to these papers, he failed and refused to certify that he was the Ex Officio Clerk of the Court of Ordinary.' The defendant is the Ordinary of Dooly County and he is Ex Officio Clerk of the Court of Ordinary of Dooly County. It is his legal duty as 'Ordinary and Ex Officio Clerk' to execute certified copies, stating therein that he is 'Ordinary and Ex Officio Clerk of the Court of Ordinary.' The plaintiff is entitled to the writ of mandamus against the Ordinary of Dooly County to compel him to certify to these papers, and to state in the certificate 'that he is Ordinary and Ex Officio Clerk of the Court of Ordinary of Dooly County.' By amendment it was alleged that the plaintiff offered to pay for the copy of the application for marriage license, the marriage license, and the minister's certificate, and that the defendant refused to certify these copies as both ordinary and ex officio clerk. The plaintiff demanded, and was refused, certified copies of the documents by the ordinary as both ordinary and ex officio clerk.

A rule nisi was granted, and the defendant filed general and special demurrers and an answer. The bill of exceptions recites that the general and special demurrers of the defendant were overruled, and that the issues were passed upon by on the pleadings alone without the introduction of evidence. The judge of the superior court issued an order requiring the defendant to certify to the documents requested as 'both Ordinary and Ex Officio Clerk of the Court of Ordinary, Dooly County, Georgia.' The defendant excepted to the order overruling his demurrers and to the judgment asking the mandamus absolute.

Davis & Friedin, Vienna, for plaintiff in error.

Robt. S. Horne, Macon, for defendant in error.

HEAD, Justice.

'There are two essential requisites of a valid application for mandamus to enforce a right, [viz.], the legal duty imposed on the defendants to do the thing they are asked to do; and a pecuniary loss, to the plaintiff, for which he can not be compensated in damages.' Atlantic Ice & Coal Corp. v. Town of Decatur, 154 Ga. 882, 115 S.E. 912. Ordinaries may be compelled to perform ministerial duties imposed upon them by law. Head v. Waldrup, 193 Ga. 165, 17 S.E.2d 585. 'To entitle one to the writ of mandamus, it must appear that he has a clear legal right to have performed the particular act which he seeks to have enforced.' City of Atlanta v. Blackman Health Resort, 153 Ga. 499, 505, 113 S.E. 545, 548.

The Code, § 24-1801, provides: 'The ordinaries are, by virtue of their offices, clerks of their own courts; but they may, at their own expense, appoint one or more clerks, for whose conduct they are responsible, who hold their offices at the pleasure of such ordinary.' By § 24-1804(11) it is provided: 'It is the duty of such clerks, or the ordinaries acting as such * * * To give transcripts likewise as they are required; and when the ordinary and the clerk are the same person, so to state in the certificates.'

The petition in this case alleges that, when the ordinary certified to the copies of papers on file in his office, 'he failed and refused to certify that he was the Ex Officio Clerk of the Court of Ordinary,' and it is contended that the plaintiff was entitled to have the copies as certified. He prayed that the ordinary 'be required to certify to them as ordinary and Ex Officio Clerk of the Court of Ordinary of Dooly County,' and the judgment making the mandamus absolute required that the copies be certified as prayed.

Our Code does not prescribe any exact form which shall be used by the ordinary when certifying copies of records in his office, or any exact form that shall be used by a clerk in the office of the ordinary when certifying to copies of such records. While a certificate as requested by the plaintiff would be in substantial compliance with the Code, §§ 24-1801 and 24-1804(11), Weeks v. Hosch Lumber Co., 133 Ga. 472, 66 S.E. 168, 134 Am.St.Rep. 213, the ordinary could have properly certified the copies without using the language directed by the mandamus absolute.

In Lay v. Sheppard, 12 Ga. 111, 37 S.E. 132, it was said that a certificate by the ordinary 'does not conform to law, unless it affirmatively discloses whether or not such ordinary was also the clerk of that court.' Since the Code, § 24-1801, provides that ordinaries are, 'by virtue of their offices, clerks of their own court', a certificate by the ordinary in which he states that by virtue of his office he is clerk of his own court would comply with the requirements of § 24-1804(11).

In Sellers v. Page, 127 Ga. 633, 634(3), 56 S.E. 1011, it was said that an ordinary's certificate sufficiently authenticates the record when it appears affirmatively in the certificate 'that the ordinary had no clerk, and was acting himself as the clerk of his own court.' In Smallwood v. Kimball, 129 Ga. 49, 50(2), 58 S.E. 640, it was said that a certificate by an ordinary 'does not render the copy admissible in evidence, unless it is made affirmatively to appear that there is no clerk other than the ordinary.' A certificate by the ordinary that he has 'no clerk' would be a substantial compliance with the requirements of the rule stated in the Smallwood case.

Conceding, but not deciding, that the other essential requisite, 'pecuniary loss to the plaintiff for which he can not be compensated in damages.' was made sufficiently to appear by the allegations of the petition, the plaintiff could not demand, and could not require, that the certificate of the ordinary be...