Opinion
15784, 15808.
APRIL 16, 1947. REHEARING DENIED MAY 16, 1947.
Mandamus. Before Judge Hendrix. Fulton Superior Court. January 20, 1947.
William G. McRae, for plaintiff.
Durwood T. Pye, Ralph H. Pharr, and W. S. Northcutt, for defendant.
1. The petition of the administratrix of the estate of the deceased Deputy Marshal of the Municipal Court of Atlanta, alleging that he was illegally removed from office before the expiration of his four-year term, and that he did not resign or abandon the said office, and seeking to require the Chairman of the County Commissioners to issue warrants for the salary of the said officer for the remainder of the term, alleged a cause of action and was not subject to the general demurrer.
2. Where the evidence introduced upon the trial in behalf of the petitioner showed that the officer ceased to perform the duties of the office and engaged continually in the performance of the duties of another position, and showed an order of the judges of the court removing the said officer, but failed to show that the deceased officer did not acquiesce in the order of the judges or abandon his office, the evidence was insufficient, and the court did not err in entering a judgment of nonsuit.
Nos. 15784, 15808. APRIL 16, 1947. REHEARING DENIED MAY 16, 1947.
Mrs. Mary R. Poole, as temporary administratrix of the estate of Charles F. Poole, sought mandamus against Clarence Duncan, as Chairman of the Board of Commissioners of Roads and Revenues of Fulton County, requiring him to issue county warrants for stated sums alleged to have been due the deceased as salary from February 1, 1926, to September 7, 1927. It was alleged: that the deceased was duly elected Deputy Marshal of the Municipal Court of Atlanta on September 7, 1923, for a full term of four years; that he held the said office and did not resign or abandon the same during the entire four-year term; that he was prevented from performing the duties of the office after February 1, 1926, by the illegal conduct of the judges of the Municipal Court of Atlanta who dispensed with his services and removed his name from the payroll and deprived him of his salary as of February 1, 1926; that it is the duty of the defendant to issue and sign warrants drawn on the Treasurer of Fulton County for the monthly salary of the deceased, the exact amounts of which were set forth in the petition, and the petitioner made demand upon the defendant to do so, alleging the date of the demand, which demand had been refused; that the deceased was illegally removed from the said office by the judges of the said court on January 31, 1926, without his ever having been suspended as provided by law, without making any charges against him, without notice to the deceased and an opportunity to be heard, and without any order signed by the judges declaring him permanently removed as provided by law.
The defendant demurred upon general grounds and made answer denying the material allegations of the petition and pleaded that the deceased had abandoned the office. The demurrer was overruled. Upon the trial a judgment of nonsuit was granted, to which the petitioner excepted. The defendant by cross-bill of exceptions assigns error on the judgment overruling his general demurrer.
The evidence introduced by the petitioner was the following order, petitioner's exhibit No. 10: "Pursuant to an order passed by the Board of Judges on December 31, 1925, the services of the following men are dispensed with as of January 31, 1926: Mr. Green K. Dennis, Mr. S. L. Dallas, Mr. Chas. L. Poole, Mr. M. A. Witt. (Signed) L. Z. Rosser, Chief Judge, J. B. Ridley, Judge, L. F. McClelland, Judge, C. L. Pettigrew, Judge, T. O. Hathcock, Judge." Also the petitioner's exhibit No. 4, being an excerpt from the minutes of the Board of County Commissioners, as follows: "The Chairman of the Board reported that the Sheriff of Fulton County had appealed to him for the appointment of an additional bailiff to serve in the Criminal Court of Atlanta, and that effective March 1, 1926, he had authorized the Sheriff to employ Mr. Chas. F. Poole to serve as such bailiff at a salary of $150 per month, as provided in act approved August 19, 1925. Upon motion of Commissioner Johnson, the action of the Chairman was adopted and made the other [order?] of the Board."
William G. McRae, attorney for the petitioner, testified that he had made an inspection of the records of the Municipal Court of Atlanta relating to the severing of the connection of Charles F. Poole with the office of deputy marshal; that the only order he found was the petitioner's exhibit No. 10 above set forth; and that there was no other record dealing with Poole's leaving the office of deputy marshal.
The petitioner testified that she was the widow of Charles F. Poole and had qualified as temporary administratrix of his estate. She remembered when he worked as Deputy Marshal of the Municipal Court of Atlanta. He came home one night and said that he had lost his job, that he had been fired. She was working at the time for Atlanta Terminal Company. She went to Mr. Hixon and asked him if he would give Poole a position. Mr. Hixon gave Poole a position in a few days, and he went to work as a clerk in the baggage room at the Terminal Station. Poole worked there between the time he was discharged from the municipal court and the time when he went to work as bailiff in the criminal court. She did not know the date when Poole left the municipal court, nor did she know the circumstances of his leaving except what he told her. Poole worked a month or two at the Terminal Station, and then worked in the sheriff's office until Sheriff Lowry died. The Sheriff died some time before Poole died.
1. The allegations of the petition as amended were sufficient to withstand the general demurrer, and the court did not err in overruling the same.
2. The writ of mandamus is available in a proper case for the enforcement of a private right and the faithful performance of official duties. Code, Title 64. To entitle one to mandamus a clear legal right to have the act performed must appear. Adkins v. Bennett, 138 Ga. 118 (1) ( 74 S.E. 838); City of Atlanta v. Blackman Health Resort, 153 Ga. 499 ( 113 S.E. 545). A petitioner for mandamus does not make out a prima facie case until he proves a legal duty imposed on the defendant to do the thing he is asked to do and shows a pecuniary loss to the petitioner for which he can not be compensated in damages. Atlantic Ice Coal Corp. v. Decatur, 154 Ga. 882 (2) ( 115 S.E. 912). Under the allegations of the petition here, the petitioner had not made a prima facie case until she had shown that her deceased husband was entitled to the salary sought. The act creating the office of Deputy Marshal of the Municipal Court of Atlanta (Ga. L. 1913, p. 145) fixed the term of that office at four years. See section 24 of the act. In the view we take of this case it is unnecessary to decide whether or not the deceased was removed in the manner prescribed by the act. The petitioner pleads that the deceased neither resigned nor abandoned the office. The Code, § 89-501, enumerates the ways in which an office shall be vacated, one of which ways being "by abandoning the office and ceasing to perform its duties, or either." The evidence introduced by the petitioner shows that the deceased ceased to perform the duties of the office on February 1, 1926. It also shows that he thereafter was constantly engaged in the performance of the duties of other positions of employment. The only testimony to show that the deceased did not acquiesce in the order of the judges and that he did not resign or abandon his office was the testimony of the petitioner that the deceased told her that he had lost his job, that he had been fired. This testimony, being purely hearsay, was without probative value and insufficient to prove anything. Rimes v. Martin, 197 Ga. 273, 280 ( 29 S.E.2d 49); Peacon v. Peacon, 197 Ga. 748, 752 ( 30 S.E.2d 640). Therefore the case stood at the time the nonsuit was granted wholly lacking in any evidence to establish this essential part of the case as pleaded. Accordingly, the court did not err in granting the nonsuit.
Judgment affirmed on the main bill and cross-bill of exceptions. All the Justices concur.