Opinion
19096.
SUBMITTED SEPTEMBER 14, 1955.
DECIDED OCTOBER 13, 1955. REHEARING DENIED NOVEMBER 16, 1955.
Mandamus. Before Judge Kelley, presiding. Habersham Superior Court. June 29, 1955.
R. C. Scott, for plaintiffs in error.
Herbert B. Kimzey, Kimzey Kimzey, contra.
This is a suit for mandamus by citizens and taxpayers of the City of Cornelia against the mayor and other officials thereof, praying that they be required to regain title to certain alleged city property illegally deeded to a civic organization for the purpose of obtaining a loan thereon for civic purposes, and then to re-deed the property to the city in conformity with the resolution by which title was to be conveyed; the petition as amended showing that the civic club "fails and refuses to re-deed the . . . property to the city." Demurrers were filed to the petition, and after a hearing the grounds of the general demurrer were sustained and the petition as amended was dismissed. The exception here is to this judgment. Held:
Whether or not in a mandamus proceeding by taxpayers the collateral issues as to the rights of the city to have the property reconveyed or the entire transaction declared to be void and ultra vires can be raised, it is unnecessary to determine this question, since neither the civic club to which the property was conveyed, nor the loan company which has the absolute title to the property, were named as parties, and the grant of the writ would be fruitless since an adjudication of the above questions would still be necessary to determine whether or not the city officials have a clear and legal right to have the property reconveyed to the city. See Code §§ 64-101, 64-106; Walton v. Booth, 151 Ga. 452 (2) ( 107 S.E. 63); Smith v. Hodgson, 129 Ga. 494 ( 59 S.E. 272); Pierce v. Rhodes, 208 Ga. 554 ( 67 S.E.2d 771), and cases cited therein. It follows that the court did not err in sustaining the general demurrer and dismissing the petition as amended.
Judgment affirmed. All the Justices concur.