Raley v. Mayor

• Decision Date: 09 June 1904
• Citation: 47 S.E. 972,120 Ga. 365
• Parties: RALEY . v. MAYOR, ETC., OF TOWN OF WARRENTON.
• Court: Georgia Supreme Court

47 S.E. 972

120 Ga. 365

RALEY .

v.MAYOR, ETC., OF TOWN OF WARRENTON.

Supreme Court of Georgia.

June 9, 1904.

TOWN OFFICE—ABOLITION—ACTION FOB COMPENSATION—AFFIDAVIT.

1. The original petition set forth no cause of action, and, if a cause of action was set forth in the amendment, it was entirely new and distinct from that attempted to be alleged in the original petition. There was therefore no error in refusing to allow the amendment, or in dismissing the original petition on demurrer.

2. The body of an affidavit began with the words "Personally comes Mrs. Joseph Raley, " and was signed "M. N. Raley." Below the signature was the ordinary jurat, and the signature of an officer authorized by law to administer an oath. Held, that the paper was the affidavit of M. N. Raley, who was presumptively the person referred to therein as Mrs. Joseph Raley.

¶ 2. See Affidavits, vol. 2, Cent. Dig. § 39.

(Syllabus by the Court.)

Error from Superior Court, Warren County; H. G. Lewis, Judge.

Action by Mrs. Joseph Raley against the mayor and commissioners of the town of Warrenton. Judgment for defendants, and plaintiff brings error. Affirmed.

The petition of Joseph Raley against the mayor and commissioners of the town of Warrenton alleged: In pursuance of the au thority conferred by the charter of the town, the defendants created the office of deputy or night marshal, in addition to the office of marshal. Petitioner filed his application for one of the marshal's or deputy marshal's positions, and he was by the defendants duly elected deputy or night marshal of the town, and his salary fixed at $300 per annum. Petitioner construed the action of the defendants as electing him for one year, and accepted the position as a contract for a year. Petitioner entered upon the discharge of his duties, and faithfully performed the same. After having served a few months, petitioner was discharged by the defendants without any charges having been preferred against him|, and without any opportunity having been given him to defend himself against any charges. This notwithstanding a section of the code of the town provided that no officer should be discharged until he had been given notice of, and an opportunity to defend himself against, any charges which had been preferred. Petitioner has always been ready and willing to perform his part of the contract, and faithfully discharged the duties of the office as long as he was permitted to do so. He alleges "that by the breach of said contract of employment" he has been damaged in the sum of $187.50, the amount of his salary from the time he was discharged to the expiration of one year from his appointment. Attached to the petition are exhibits of the proceedings of the defendants, and the section of the town code referred to in the petition. From these it appears that, during a regular session of the defendants, one of the commissioners proposed that two marshals be elected, instead of one, as theretofore, and that they be paid $600 between them. This motion was carried. The petitioner's application "for one of marshal position for town of Warrenton" was then considered. Petitioner was nominated and elected "for night marshal, " and his salary fixed at $300 per annum. All this took place in the early part of 1901. On June 15, 1901, the defendants met in regular session, and one of the commissioners "moved to dispense with the night marshal, thereby curtailing that expense." This motion was carried. Defendants demurred to the petition on the grounds that it set forth no cause of action; that, having created the office of night marshal, the defendants had a right to abolish it in their discretion; that, the office being created by ordinance, it could be abolished at any time, even though the incumbent was elected for 12 months. In response to the demurrer, the petitioner tendered an amendment, by which he offered to strike from the petition all the allegations thereof to the effect that he held "any office" in the municipality, and by alleging in lieu thereof that "he was employed by defendants as night marshal" for 12 months at a compensation of $300 per year. The defendants objected to the amendment on the groundthat it set forth a new and distinct cause of action. This objection was sustained, and the amendment disallowed. The court then sustained the demurrer to the original petition and dismissed it. Pending the case in the trial court, the plaintiff died, and his administratrix was made a party in his stead. She has sued out a bill of exceptions complaining of both of the judgments above referred to. Her bill of exceptions was sued out in forma pauperis, and the affidavit made to avoid the payment of costs, after being properly entitled, is as follows:

"Georgia, Warren County. Personally comes Mrs. Joseph Raley, plaintiff in error in a bill of exceptions filed in the above-stated case, and, on oath, says that the estate of Joseph Raley,...