The City is not a proper party to this mandamus action. Crow v. McCallum, 215 Ga. 692, 693(1) ( 113 SE2d 203) (1960); Bulloch County v. Ritzert, 213 Ga. 818 ( 102 SE2d 40) (1958). Although a pre-trial order had not yet been entered, Touchton still could not add the mayor and City Council members as defendants by amendment without leave of court. Clover Realty Co. v. Todd, 237 Ga. 821, 822 ( 229 SE2d 649) (1976); Slater v. Brigadier Homes, 198 Ga. App. 67 ( 400 SE2d 338) (1990).
The writ of mandamus does not reach the office, but is a personal action against the official. Crow v. McCallum, 215 Ga. 692 ( 113 S.E.2d 203) (1960); OCGA § 9-6-20. Judgment affirmed. All the Justices concur.
Accord, Atlanta W. P. R. Co. v. Coleman, 142 Ga. 94 ( 82 S.E. 499) (1914); Southern R. Co. v. Inman, Akers Inman, 11 Ga. App. 564 ( 75 S.E. 908) (1912). The fund commissioners cite as authority for the twenty-year statute of limitation Crow v. McCallum, 215 Ga. 692 ( 113 S.E.2d 203) (1960). There, the fund commissioners sought to collect only the principal amount due under Code Ann. § 78-909, and did not seek the statutory penalty.
Thus, Code Ann. § 89-832 is the applicable statute of limitation. Third, it is suggested that this court overlooked the case of Crow v. McCallum, 215 Ga. 692 ( 113 S.E.2d 203) (1960) which applied Code Ann. § 3-704 to a suit brought by the Commissioners of the Peace Officers' Annuity Benefit Fund against certain city officials seeking to compel payment to the fund of certain amounts alleged to be due to the fund out of fines and forfeitures. The only issue presented and decided in that case was whether the four-year statute of limitation applicable to suits on open accounts or, instead, Code Ann. § 3-704 should have been applied.
See Wood v. City Board of Plumbing Examiners, 192 Ga. 415 ( 15 S.E.2d 485), and Fletcher v. Gillespie, 201 Ga. 377 ( 40 S.E.2d 45)." Crow v. McCallum, 215 Ga. 692, 297 ( 113 S.E.2d 203). 2.
This court held in Weathers v. Easterling, 153 Ga. 601 (1) ( 113 S.E. 152), that where county commissioners in office failed to enter a contract on their minutes, as required, mandamus would lie against their successors to compel them to enter the contract on their minutes. It is well established by decisions of this court that persons holding public office may be required by mandamus to perform a continuing duty which their predecessors in office failed or refused to do. See Crow v. McCallum, 215 Ga. 692 ( 113 S.E.2d 203); and Undercofler v. Scott, 220 Ga. 406 ( 139 S.E.2d 299). 5. The appellants next contend that summary judgment will not lie in a mandamus case, asserting as a reason therefor that Code Ann. § 81A-156 (Ga. L. 1966, pp. 609, 660; Ga. L. 1967, pp. 226, 238) does not specifically refer to an action for mandamus.
HEAD, Presiding Justice. All questions made by the bill of exceptions in the present case have been decided adversely to the contentions of the plaintiffs in error by the decision in Crow v. McCallum, 215 Ga. 692 ( 113 S.E.2d 203). Judgment affirmed. All the Justices concur.
This right is not one applicable to the public at large, but to individuals (corporations) complying with this statute. See Crow v. McCallum, 215 Ga. 692, 696 ( 113 S.E.2d 203); Perry Co. v. Knight Ins. Underwriters, 149 Ga. App. 128, 129-130, supra. Accordingly, the trial court did not err in declaring the award of the arbitration board to be void and without any effect, in denying the defendant's motion for summary judgment as to Count 1 of the counterclaim and in granting summary judgment in favor of the plaintiff as to Count 1 of the counterclaim since the nullity of the arbitration award controls these last two rulings.
Where it is sought to make a board of education a party to an action by naming its members in their official capacity as such, the petition is subject to general demurrer unless it specifies that the persons named "are the duly qualified and acting members of the board of education, or that they are suing [sued] in their official and representative capacity as such members." Parker v. Bd. of Ed. of Sumter County, 209 Ga. 5 (3) ( 70 S.E.2d 369). That the predecessors in office of the public officials serving as the board of education at the time it is called upon to defend this action and answer for any judgment entered against it are not necessary parties to such an action, see Crow v. McCallum, 215 Ga. 692 (1) ( 113 S.E.2d 203). Nor are they proper parties, for they have no part in determining any action the board may decide to take in defending the suit or otherwise carrying on its business. It was not the individuals concerned who assented to the contract with the plaintiff in the first instance, but the continuing organization known as a board of education, acting through those who comprised its membership at that time.
In paragraph 4 plaintiff alleged that it was entitled to monthly hire of $25, and defendant denied that allegation "as pleaded." Does he deny that the monthly hire is $25 or is he denying that plaintiff is entitled to the hire? Cf. Juchter v. Boehm, Bendheim Co., 63 Ga. 76, 77; Brunswick c. R. Co. v. Clem, 80 Ga. 534, 536, (supra); Crow v. McCallum, 215 Ga. 692, 694 ( 113 S.E.2d 203). These denials were evasive and insufficient. Midland R. v. Webb, 20 Ga. App. 237, supra; Thomas McCafferty v. Siesel, 2 Ga. App. 663 ( 58 S.E. 1131). In paragraph 5 of his answer defendant alleged that "the security taken by this plaintiff did not give him any paramount title nor right of possession thereof . . . plaintiff's purported lien was and is inferior to other encumbrances outstanding, and plaintiff was on notice of the existing facts."