Walker v. Hamilton
| Decision Date | 11 May 1953 |
| Docket Number | No. 18192,18192 |
| Citation | 76 S.E.2d 12,209 Ga. 735 |
| Parties | WALKER v. HAMILTON. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Superior courts of this State, on an application for leave to file an information in the nature of a quo warranto may, where the facts set forth in the accompanying information are positively verified, grant the leave to file ex parte or issue a rule nisi calling upon the respondent to show cause why the information should not be filed against him.
2. Where a rule to show cause issues on such application, on a hearing of the rule the court may consider evidence as well as the pleadings, and it is discretionary with the court whether said application is granted or denied.
3. Where as here, on a hearing of such a rule, the court considered evidence and the plaintiff in error failed to prepare, get approved, and filed a brief of evidence, and the record contains no such brief, this court can not reverse the judgment, since to do so would require a consideration of the evidence; consequently our judgment must be one of affirmance.
A. O. Walker, the plaintiff in error, presented an application for leave to file an information in the nature of a quo warranto to the Judge of the Superior Court of Richmond County, in order that an inquiry may be made into the right of Hugh L. Hamilton, the defendant in error, to hold the office of Mayor of the City of Augusta, and attached thereto was a petition setting out the information. The court did not grant the leave to file ex parte, but issued a rule for the defendant in error to show cause on February 13, 1953, why the prayers of the application should not be granted. A demurrer and answer were filed, and the relator thereafter filed an amendment, to which the respondent renewed his demurrer. After a hearing thereon the court passed an order denying the application, and in the order stated, 'After consideration of said application as amended and the demurrers and response of the defendant * * * and the evidence submitted by applicant in support of said application, and after consideration of the proposed information * * * leave to file said information in the nature of a quo warranto is hereby denied.' The exception here is to this judgment.
B. H. Barton, Augusta, for plaintiff in error.
Harris, Chance & McCracken, Congdon, Harper & Leonard, Cumming, Nixon & Eve, Pierce Bros. and Fulcher, Fulcher & Hagler, Augusta, for defendant in error.
The law authorizes a direct bill of exceptions to a judgment denying an application to file an information in the nature of a quo warranto. McWilliams v. Jacobs, 128 Ga. 375, 57 S.E. 509; Overton v. Gandy, 170 Ga. 562, 153 S.E. 520. In order to maintain such proceedings to test the title to public office, one must have some interest, in the office. While a claimant to the office has such an interest it is not essential that one be a claimant, but is sufficient if he be a resident or a taxpayer of the municipality where the office in question is that of mayor of such municipality. Churchill v. Walker, 68 Ga. 681; Davis v. City Council of Dawson, 90 Ga. 817, 17 S.E. 110; Whitehurst v. Jones, 117 Ga. 803, 45 S.E. 49; McDuffie v. Perkerson, 178 Ga. 230, 173 S.E. 151, 91 A.L.R. 1002.
But the ancient writ of quo warranto, which was in the nature of a writ of right, has been materially modified by statute in Georgia. By this modification there no longer exists a writ of right, but a prerequisite to the maintenance of an information in the nature of a quo warranto is leave of the court, granted on application therefor in the exercise of a sound discretion, to file the proposed information. Stone v. Wetmore, 44 Ga. 495; Collins v. Huff, 63 Ga. 207; Harris v. Pounds, 66 Ga. 123; Dorsey v. Ansley, 72 Ga. 460; McWilliams v. Jacobs, 128 Ga. 375, 57 S.E. 509, supra. However, our statutes do not prescribe the specific procedure that must be followed in such cases. Milton v. Mitchell, 139 Ga. 614, 77 S.E. 821; Garrett v. Cowart, 149 Ga. 557, 101 S.E. 186; Culbreth v. Cannady, 168 Ga. 444, 148 S.E. 102. In Milton v. Mitchell, it was held that the judge was authorized in that case to pass upon...
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Crawford v. Balli
...has directed that the petition must be dismissed. Everetteze , 286 Ga. at 13 (2), 685 S.E.2d 72.Crawford relies on Walker v. Hamilton , 209 Ga. 735, 738, 76 S.E.2d 1 (1953), to support his argument that the trial court effectively granted leave when it issued the rule nisi. But Walker does ......
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Everetteze v. Clark
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Anderson v. Flake, S98A1476.
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