Terrell County v. City of Dawson

• Decision Date: 28 February 1931
• Docket Number: 7591.
• Citation: 158 S.E. 47,172 Ga. 403
• Parties: TERRELL COUNTY v. CITY OF DAWSON.
• Court: Georgia Supreme Court

158 S.E. 47

172 Ga. 403

TERRELL COUNTY v. CITY OF DAWSON.

No. 7591.

Supreme Court of Georgia

February 28, 1931

Syllabus by Editorial Staff.

Motion to dismiss, founded on matter not appearing on petition filed after appearance term and after Supreme Court reversed judgment sustaining previous demurrer, held properly overruled (Civ. Code 1910, § 5629).

Plaintiff not objecting to amendment to answer because not accompanied by affidavit explaining delay, waived affidavits (Civ. Code 1910, § § 5640, 5681).

Allowance of amendment to answer without affidavits explaining delay is discretionary with judge (Civ. Code 1910, § 5640).

Court allowing amendment without affidavits explaining delay, but thereafter striking amendment on demurrer to merits, is deemed not to have acted on his discretion (Civ. Code 1910, § § 5640, 5681).

Answer to city's suit against county to recover portion of rents from property owned jointly setting up title in county invalidity of conveyance by county and act authorizing conveyance and failure to join county commissioners held insufficient (Laws 1897, p. 562).

Laws 1897, p. 562, provided for operation of dispensary, profits from which were to be distributed equally to county and city and that commissioners of roads and revenues should be dispensary commissioners. Deed was executed by road commissioners to dispensary commissioners to land for operation of dispensary on which building was erected. Dispensary was closed and property rented to others, but entire rents were retained by county. City sued to recover rents and county in amended answer alleged that realty was property of county; that deed conveying land was invalid that commissioners of roads and revenues were necessary parties, and that act purporting to authorize conveyance was invalid.

Deed by county commissioners to dispensary commissioners showing individuals acted officially was not inadmissible because not signed by county.

Informal deed by county commissioners to dispensary commissioners was not inadmissible in city's action against county for rent because not made to dispensary commissioners in corporate name.

Testimony by county commissioner that county sold realty to dispensary commissioners was not inadmissible as immaterial or conclusion of witness.

Records of dispensary commissioners indicating realty had been sold by county to commissioners was not irrelevant in suit against county for rent.

Sufficiency of evidence to support finding will not be considered without brief of evidence in bill.

Error from Superior Court, Terrell County; M. J. Yeomans, Judge.

Suit by the City of Dawson against Terrell County. Judgment for plaintiff, and defendant brings error.

Affirmed.

Testimony by county commissioner that county sold realty to dispensary commissioners was not inadmissible as immaterial.

The act approved December 10, 1897 (Ga. Laws 1897, p. 562), provided for incorporation of dispensary commissioners of Terrell county to establish a dispensary or dispensaries for sale of spirituous liquors in Terrell county, the business to be maintained and operated by employment of the profits arising from sales, and the "net profits" to be distributed, one half to the treasurer of the county to go into the general funds of the county, and the other half to the treasurer of the city or town in which was located a dispensary from which said net proceeds should be derived. The act provided that the commissioners of roads and revenues of the county should be ex officio dispensary commissioners. The act did not expressly purport to confer authority on the dispensary commissioners to buy or sell land. A dispensary was established in the city of Dawson, from the operation of which $500 was accumulated from the "net proceeds" of the business. In 1905 named persons were commissioners of roads and revenues of Terrell county and ex-officio dispensary commissioners of the county. On May 2, 1905, a deed was executed as follows: "State of Georgia, Terrell County. This indenture made the 2nd day of May, in the year of our Lord, one thousand nine hundred and five (1905), between S. R. Christie, J. I. Roberts, C. M. Harris, H. A. Cook, and W. L. Pace, Commissioners of Roads and Revenues of Terrell County and State of Georgia, of the one part, and S. R. Christie, J. I. Roberts, C. M. Harris, H. A. Cook, and W. L. Pace, Dispensary Commissioners of the County of Terrell and State of Georgia, of the other part, witnesseth: That the said Commissioners of Roads and Revenues of said County, for and in consideration of the sum of five hundred dollars in hand paid, at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, bargained, sold, aliened, conveyed, and confirmed, and by these presents does grant, bargain, sell, alien, convey, and confirm, unto the Dispensary Commissioners and their successors in office [giving description of the property in question]. To have and to hold said bargained premises, with all and singular the rights, members, and appurtenances thereunto appertaining, to the only proper use, benefit, and behoof of the said Dispensary Commissioners and their successors in office, in fee simple. And the said Commissioners of Roads and Revenues the said bargained premises unto the said dispensary commissioners and their successors in office, against the said Commissioners of Roads and Revenues and their successors, and against all other person or persons, shall and will warrant and forever defend by virtue of these presents. In witness whereof the said S. R. Christie, J. I. Roberts, C. M. Harris, H. A. Cook, and W. L. Pace, have hereunto set their hands and affixed their seals, and delivered these presents the day and year first above written. [Then follow the signatures of the five persons just named, each followed by (L. S.) Signed, sealed, and delivered in the presence of: W. S. Dozier, J. B. Roberts, Ordinary.]"

This deed is referred to hereafter as Exhibit A. From other net proceeds of the business a building was erected on the lot in which the dispensary was subsequently operated. In 1907 the dispensary was closed, and the dispensary commissioners, by order entered upon their minutes, directed that the building and lot be conveyed one half to the city and the other half to the county. An entry on the minutes stated that "deeds were then executed" as mentioned, but no such deeds appear in the record. From that time up to January 1, 1923, the property was rented to others. The entire rents were paid to the county, and the county in turn paid over one-half to the city. From and after the date last mentioned the county collected from the tenant in possession rents amounting to $1,646.66, and refused to pay the city any part thereof. In 1927 the city instituted an action against the county, seeking a judgment for $823.33 as the city's share of the rents. The petition alleged all that is stated above. The defendant filed a demurrer and an answer, after which the petition was amended by alleging that the half of the rents belonging to the city "were placed in the county treasury and were used" by the county "for public purposes." The demurrer to the petition as amended was sustained, and the case was dismissed. On writ of error to the Court of Appeals the judgment was reversed, and a writ of certiorari was refused by this court. City of Dawson v. Terrell County, 38 Ga.App. 676, 145 S.E. 465. After the case was returned to the trial court, the defendant, on November 12, 1929, filed an amendment to its answer, alleging (1) that the real estate was the property of the county; that the deed attached to the original petition as Exhibit A was not signed by the county of Terrell, but was signed by individuals named therein, who had no interest in the property, and consequently it failed to convey title out of the county; (2) that the deed was not made to the dispensary commissioners in its corporate name, but was made to the named persons individually, and it was void and ineffective as a conveyance of title out of defendant, because it was...