Spencer v. City Of Clarkes-ville

• Decision Date: 18 November 1907
• Citation: 129 Ga. 627,59 S.E. 274
• Parties: SPENCER et al. v. CITY OF CLARKES-VILLE et al.
• Court: Georgia Supreme Court

59 S.E. 274

129 Ga. 627

SPENCER et al.

v.CITY OF CLARKES-VILLE et al.

Supreme Court of Georgia.

Nov. 18, 1907.

1. Writ op Error—Assignments of Error.

A general assignment of error in a direct bill of exceptions to a final judgment brings under review only such antecedent rulings as have been specifically made the subject of exception and of proper assignment of error.

2. Municipal Corporations—Bonds — Petition for Validation.

The answer of the municipality to the petition for the validation of the bonds was not demurrable on any of the grounds taken by the interveners in their demurrer thereto.

3. Same—Intervention.

Where an intervener in a proceeding for the validation of bonds interposes objections based upon facts which do not appear in the pleadings of the parties, but which depend for the proof of their existence upon aliunde evidence, the burden is upon him to prove the alleged facts thus set up.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, g 2006.]

(Syllabus by the Court)

Error from Superior Court, Habersham County; J. J. Kimsey, Judge.

Petition by the state against the city of Clarkesville in relation to the issue of bonds by such city. T. G. Spencer and others, taxpayers, intervene. From an order overruling their demurrer to the petition, they bring error. Affirmed.

A petition in the name of the state of Georgia against the city of Clarkesville was filed in the superior court of Habersham county on March 21, 1907, the substance of which was as follows: Clarkesville is located in the county of Habersham, and in the Northeastern judicial circuit of this state. On February 12, 1907, an election was held in that city, in accordance with the provisions of the Constitution of the state and the law controlling and regulating such elections, on the question of the issuance of bonds to the amount of $5,000. Registration for the election was had in conformity with law, and 89 of the voters of the city registered for the election; the registration showing that that number of voters of the city were qualified to vote in such election. Seventy-five of such registered voters participated and voted in such election—64 of them "for bonds" and 11 of them "against bonds." Due and legal notice of the election was given by publication in a named newspaper, the official organ of the county, published in Clarkesville. A copy of this notice was attached to the petition as an exhibit, from which It appeared that the election was held in pursuance of an ordinance passed at a regular meeting of the city council held in December, 1906. It also appeared therefrom that the original of this copy notice stated the time and place for holding the election, the amount and denomination of the bonds to be issued, the interest which they were to bear, the manner and time in which the principal and interest were, respectively, to be paid, and the purpose for which the bonds were to be issued. On March 1, 1907, at a regular meeting of the city council, the mayor and all the members of the council and the managers of the election being present, the returns of the election were opened and canvassed, and they showed that 64 votes had been cast "for bonds" and 11 votes "against bonds, " making it appear that more than two-thirds of the qualified voters at the election had voted in favor of the issuance of bonds; and the result of the election was then and there declared in favor of the issuance of bonds. In accordance with the statute for such cases provided, the Solicitor General of the circuit was, within 20 days after the result of the election was so declared, notified in writing that such election had been held and of the result thereof; a copy of the notice being attached to the petition as an exhibit The petition itself then set forth in detail the amount of the bonds, their denomination, the purpose for which they were to be issued, the interest they were to bear, when the interest was to be paid, and when the principal was to become due and to be paid, and alleged: "The indebtedness to be created by the issuance of said...