Rhodes v. City of Louisville

• Decision Date: 21 December 1904
• Parties: RHODES v. CITY OF LOUISVILLE.
• Court: Georgia Supreme Court

49 S.E. 681

121 Ga. 551

RHODES v. CITY OF LOUISVILLE.

Supreme Court of Georgia

December 21, 1904

Syllabus by the Court.

1. The misnomer of the municipality in a petition to validate bonds under the act approved December 6, 1897 (Acts 1897, p. 82) does not vitiate the judgment of confirmation, where it appears that the officers of the municipality acknowledged service of the petition and answered the same under oath in its true corporate name, and the judgment of validation also sets forth the proper corporate name of the municipality.

2. The published notice prescribed in section 6 of said act is designed to give the citizens of the municipality, county, or division information of the pending proceeding, and a substantial compliance with the statute is sufficient.

3. Where the validating proceeding, which was served on the municipality, was described in the published notice by the caption, "State of Georgia vs. The Town of Louisville Jefferson County," and there is no municipality in Jefferson county having the corporate name of the "Town of Louisville," but there is a municipality in that county with the corporate name of the "City of Louisville," such notice is sufficient to notify the citizens of the city of Louisville of the proceeding to validate the bonds of that municipality.

Error from Superior Court, Jefferson County; A. F. Daley, Judge.

Action by E. H. Rhodes against the city of Louisville. Judgment for defendant, and plaintiff brings error. Affirmed.

G. H Howard, for plaintiff in error.

B. T. Rawlings, Sol. Gen., and Phillips & Phillips, for defendant in error.

EVANS J.

The plaintiff in error, in behalf of himself and other taxpayers of the city of Louisville, Ga., seeks to enjoin the city of Louisville, Ga., from selling certain bonds of that municipality, authorized by an election held in that city, and which were validated by the judge of the superior court of the Middle circuit. He attacks the judgment of validation on two grounds: (1) That the petition of the solicitor general to validate the bonds was brought against the town of Louisville, Ga., and not the city of Louisville, Ga.; and (2) that the published notice in the newspaper was of a proceeding against the town of Louisville, and not against the city of Louisville. For these reasons it is contended that the judgment of validation is void. On the hearing the facts were agreed upon, and the court denied the injunction. The exception is to the refusal of the injunction.

The judgment of validation was based on a petition of the solicitor general of the Middle circuit, reciting that "an election was held in the city of Louisville Georgia; that the purpose of said election was to ascertain whether or not said town would issue bonds." The allegations as to the election, the result thereof, the amount, number, maturity of the bonds, and the rate of interest, the service of notice of the result of the election on the solicitor general within 20 days of declaring the result, were made with all the fullness and precision required by the act approved December 6, 1897. Acts 1897, p. 82. The first paragraph of the petition declared that the city of Louisville was the county site of the county of Jefferson. The prayer of the petition was "that an order be granted requiring said I. F. Farmer, mayor, and W. L. Phillips, L. R. Farmer, J. B. Polhill, J. C. Little, and J. F. Brown, aldermen, of the town of Louisville, to show cause before the judge of the superior court of the Middle circuit on the 22d day of July, 1904, why said bonds should not be validated." The judge of the superior court granted an order requiring the "defendants" to show cause before him at a named place and on a given date why the bonds should not be validated. Service of the petition and order was acknowledged by the mayor and council of the city of Louisville. Notice of the hearing of the petition was published in the proper gazette. The notice was a copy of the order of the judge, with the caption: "State of Georgia vs. The Town of Louisville, Jefferson County. Petition to validate bonds." The city of Louisville, by its officers, the mayor and councilmen, filed its answer under oath, whereupon the court passed the following order: "Wrightsville, Ga., July 22, 1904. In the Matter of the Validation of Bonds of the City of Louisville, Ga. The above-stated matter coming on for hearing before me this day, as provided by order previously passed upon the petition of B. T. Rawlings, solicitor general of the Middle Judicial Circuit of Georgia, and the sworn answer of the mayor and city council of the city of Louisville, Ga., on this, the 22d day of July, 1904, after duly considering said petition and...