Morris v. City Council of Augusta , 204 Ga. 26 ( 1948 )

1. The trial court did not err in denying the motion to dismiss the answer, which was entirely responsive to the allegations of the petition.

2. While a stranger without any interest needing protection in a cause is not entitled to intervene therein, one who actually has an interest in the subject-matter of an equity cause may ordinarily intervene to protect his rights; and where such an intervention is allowed, the intervenor may adopt as his own the allegations of the answer of other defendants and be made a party defendant.

3. The evidence demanded the verdict, and other alleged errors could not have affected the result in this case.

No. 16234. JULY 14, 1948. W. S. Morris and others, alleging themselves to be taxpayers and citizens of the City of Augusta, filed an equitable petition against the City Council of Augusta, W. D. Page, mayor, John B. Kennedy, and certain officials of the City of Augusta, seeking to enjoin the payment of a pension of $4000 per annum to John B. Kennedy as a retired Commissioner of Public Safety. Among other things, the petition alleged that on April 30, 1946, while the salary of Kennedy was $5000 per annum, the City Council of Augusta passed an ordinance, No. 1533, amending previous ordinances fixing salaries by striking the amount of all salaries therein set forth, and reset the salaries of various officers and employees, and therein fixed the salary of Kennedy at $8000 per annum; that on the same date Kennedy presented a written request to the city council that he be permitted to retire from active service and enjoy the privilege of a pension as provided by law, and furnished evidence of having served the City of Augusta for more than the required 25 years; also that on the same date the city council adopted a motion granting him the right of retirement, and thus sought to provide a pension of $4000, based upon one-half of his salary. The petitioners alleged that the act fixing the salary of Kennedy at $8000 and permitting his retirement upon a pension of $4000 is illegal and void, for the reason that the ordinance granting the salary of $8000 had not become effective at the time he retired, as it had not been advertised as required by the city code.

The defendants answered, denying the material allegations of the petition, and further alleging, among other things: that in January, 1946, John B. Kennedy, whose pension the plaintiffs sought to enjoin, had served for thirty years as a member of the fire department of the City of Augusta and as Commissioner of Public Safety; and in January, 1946, the city council, in recognition of the increased cost of living and the long service of the defendant Kennedy, desired to raise the salary of Kennedy above the $5000 per annum fixed by the legislature in 1941; that the city council requested the legislature to remove the limitation of $5000 fixed by the legislature in 1941, and by an act approved January 31, 1946, the legislature did remove the limitation upon the salary of Kennedy; that thereafter, on April 17, 1946, the City Council of Augusta, by ordinance No. 1531, attached as an exhibit to the answer, increased the salary of Kennedy to $8000 per year, and on and after the passage of this ordinance the salary of the defendant Kennedy was a sum of $8000 per year; that on April 30, 1946, two weeks after the passage of the ordinance increasing the salary of Kennedy, he notified the City Council of Augusta that he desired to retire pursuant to the acts of the General Assembly of Georgia and the charter of the City of Augusta, which authorized his retirement after twenty-five years of service at one-half his salary; that this request for retirement was received by the City Council of Augusta and acted upon while ordinance No. 1531 was in full force and effect and before ordinance No. 1533, attacked by the petition, had either been introduced or passed by the city council, and ordinance No. 1533, introduced and passed after the retirement of the defendant Kennedy had been approved and had become effective, could in no wise affect the pension rights of Kennedy; that Kennedy had made regular contributions to a pension fund, in compliance with acts of the legislature, contributing 1 1/2 percent of his salary from 1925 to 1945 and 3 percent of his salary from 1945 to the date of his retirement.

The defendants filed a general demurrer to the petition. The trial court sustained this demurrer; and on review this court (Morris v. Augusta, 201 Ga. 666, 40 S.E.2d 710) reversed the trial court, holding that the petition, taken to be true as against a general demurrer, set forth a cause of action for injunction.

When this case was called for trial, the defendants, W. D. Page as mayor of the City of Augusta and John B. Kennedy, were present and represented by counsel. The other defendants were not present and were not represented by counsel. The defendants Page and Kennedy announced ready for trial. Thereupon the plaintiffs voluntarily dismissed the defendants Page and Kennedy as parties defendant over the protest and objection of these defendants. The plaintiffs then moved to dismiss the entire answer filed by the defendants, upon the grounds that the answer was not responsive to the allegations of the petition and the defendants were not present defending the case. This motion was overruled. The plaintiffs then introduced as evidence ordinance No. 1533, rested their case, and moved for a directed verdict, which the trial court denied. John B. Kennedy, who had been stricken as a party defendant, filed an intervention, in which he alleged that he was a party vitally interested in the subject-matter of the litigation, being the party receiving the pension sought to be enjoined by the plaintiffs; and the intervenor adopted, as a part of the intervention, the allegations of the answer filed by the defendants. The plaintiffs orally demurred to and moved to strike the intervention. This motion was denied, and the trial court ordered the case tried on its merits.

The plaintiffs offered in evidence their original petition and ordinance No. 1533, passed by the City Council of Augusta on April 30, 1946, together with the application of John B. Kennedy for retirement and the resolution of the City Council of Augusta approving the retirement. The defendant Kennedy offered in evidence ordinance No. 1531, adopted by the City Council of Augusta on April 17, 1946, fixing the salary of the Commissioner of Public Safety at $8000 per annum, and also the entire proceedings of the City Council of Augusta at a meeting held on April 17, 1946, at which the ordinance was adopted. He also introduced in evidence issues of the Augusta Herald, showing publication of ordinance No. 1531 on April 18, 19, and 22, 1946. He also introduced the application for retirement of John B. Kennedy, with entries of the city attorney, comptroller, and civil service commission thereon, and also the entire proceedings of the City Council of Augusta at a meeting held on April 30, 1946, which showed that the request for retirement on pension was submitted by John B. Kennedy and approved by the city council, and subsequently ordinance No. 1533 was introduced and adopted by the city council. Kennedy testified in his own behalf, giving details as to the date of his employment by the City of Augusta, his tenure of service, his contributions to a pension fund; and he testified that his salary was raised to $8000 per annum on April 17, 1946, and that on April 30, 1946, he decided to retire without discussing the matter with any one and filed an application for retirement. He stated: "I reached a decision to retire after thinking about it for two or three days and didn't retire until five minutes to six, April 30. That is the first time I reached a decision to retire. I did not attend a meeting of any caucus or conference of the city council. I have never discussed a salary increase with any member of the council or the mayor at any time. I didn't discuss my retirement until after it was read to council. I had my secretary to write it. I went to supper and then I went to council meeting and when the council meeting started I gave it to the clerk of council to be read. The mayor didn't know anything about it. No member of council knew anything about it. No member of my family or nobody in Augusta knew anything about it except myself and yourself [meaning his attorney]."

The trial resulted in a verdict for the defendants. The plaintiffs' motion for new trial was overruled, and the plaintiffs excepted, also assigning error on rulings made during the progress of the case, exceptions to these rulings having been preserved by exceptions pendente lite. 1. The trial court did not err in denying the motion to dismiss the answer filed by the defendants in the court below. The answer was entirely responsive to the petition, denying each and every material allegation; and the answer, together with the amendment thereto, in orderly paragraphs, alleged defensive matters, particularly alleging, as shown more fully in the statement of facts, that the salary of John B. Kennedy was raised to $8000 by an ordinance passed on April 17, 1946, and duly published as required by law, and in full force and effect on April 30, 1946; that John B. Kennedy submitted an application for retirement on pension in due form on April 30, 1946, while the ordinance of April 17, 1946, was still in full force and effect, and this application was approved before the ordinance attacked by the petition was introduced in city council. Copies of the ordinance of April 17, 1946, the application for retirement, as well as the proceedings of the city council on April 30, 1946, when the application for retirement was approved, were attached to the answer as exhibits.

2. Although the defendants Page and Kennedy were present on the call of this case and prepared to defend, the plaintiffs struck these defendants as parties defendant, and then sought to proceed against the remaining defendants, who were not present defending the action. Whether the trial court was correct in allowing the plaintiffs to strike these defendants as parties defendant is immaterial to a consideration of the case, since no cross-bill has been filed complaining of this ruling. However, after the defendants were stricken, the defendant John B. Kennedy filed an intervention, which was allowed over the objection of the plaintiffs, and this ruling is excepted to by the plaintiffs in error, and the correctness of this ruling must be determined.

Counsel for the plaintiffs in error have cited numerous cases, holding to the effect that a plaintiff may dismiss his action at any time, unless a plea of setoff or affirmative relief has been prayed for by the defendants, and such dismissal of the main cause carries with it a defensive intervention. Decisions of this tenor are not applicable to the question here raised. The plaintiffs did not dismiss their action. They struck two of the parties defendant and proceeded with their action. The question, as made by the record, is simply this: Was John B. Kennedy such a party at interest as might intervene in the cause? That Kennedy was a party vitally interested in the subject-matter of the litigation, whose rights would be directly and immediately affected by any judgment rendered, can not be questioned. The purpose of the suit was to enjoin the payment of a pension to him, and upon the outcome of the case depended his right to continue receiving a pension.

"While a stranger without any interest needing protection in a cause is not entitled to intervene therein (Clarke v.Wheatley. 113 Ga. 1074, 39 S.E. 437; Clark v. Harrison,182 Ga. 56 (3), 184 S.E. 620), yet one who actually has an interest in the subject-matter of an equity cause ordinarily may intervene to protect his rights. Allen v. Mitchell, 143 Ga. 476, 478 (85 S.E. 336); Blalock v. Jonesboro, 147 Ga. 485, 486 (94 S.E. 567); Blaisdell v. Bohr, 68 Ga. 56 (3), 61." Ogletree v. Atkinson, 195 Ga. 32 (22 S.E.2d 783).

Where such an intervention is allowed, it is permissible for the intervenor to adopt the answer of other defendants as his own and he made a party defendant. Davis v. Warde, 155 Ga. 748 (1) (118 S.E. 378). The trial court did not err in allowing the intervention.

3. We think that other questions raised may be disposed of by a consideration of whether the evidence demanded a verdict for the defendants.

The plaintiffs introduced in evidence only their petition, together with the ordinance of April 30, 1946, the application of John B. Kennedy for retirement on a pension, and the resolution of the City Council of Augusta approving the retirement. Voluminous evidence was offered by the defendants. This evidence included: Ordinance No. 1531, passed by the City Council of Augusta on April 17, 1946, and raising the salary of the Commissioner of Public Safety to $8000 per annum; certified copies of the entire proceedings of the City Council of Augusta at a meeting held on April 17, 1946, at which ordinance No. 1531 was introduced and passed; copies of the Augusta Herald, dated April 19, 20, and 22, 1946, showing the publication of ordinance No. 1531, and counsel for the plaintiffs admitted that the ordinance had been duly published; copies of the application of John B. Kennedy for retirement, with entries thereon showing approval of the civil service commission, city attorney, and comptroller; certified copies of the entire proceedings of the City Council of Augusta at a meeting held on April 30, 1946, showing that the retirement of John B. Kennedy was considered, acted upon, and approved prior to the introduction of ordinance No. 1533, which was subsequently considered and passed. A number of witnesses testified for the defendants, refuting charges of conspiracy in the retirement of Kennedy on a pension.

In this case the plaintiffs completely failed to prove the material allegations of their petition, including all charges of conspiracy as well as charges that the defendant Kennedy was retired under ordinance No. 1533, which was the subject of attack in the petition. Moreover, the undisputed evidence showed that Kennedy retired under a valid ordinance, No. 1531, which had been duly published as required by law prior to April 30, 1946; that Kennedy's application for retirement had been introduced, considered, and approved by the City Council of Augusta before ordinance No. 1533 was ever introduced or acted upon by the City Council of Augusta. Nevertheless, counsel for the plaintiffs now urge before this court that ordinance No. 1533 repealed ordinance No. 1531. In other words, although counsel attack ordinance No. 1533 in their petition as being wholly invalid and void and lay their entire petition upon that theory, they now urge, without pleadings supporting such a contention, that the ordinance of April 30, 1946, was valid for the purpose of repealing the previous ordinance. Such a position is not tenable. Moreover, whether ordinance No. 1533, which fixed the salary of the Commissioner of Public Safety at the same salary as the previous ordinance of April 17, namely, $8000, was valid or invalid, is immaterial to a consideration of the case, for if it repealed the previous ordinance, it would be given no retroactive application so as to affect the rights of the defendant Kennedy to a pension previously granted under a valid ordinance.

But it is urged by the plaintiffs that by the introduction of their petition in evidence they proved their case as laid; and the Supreme Court having previously ruled that the petition set forth a cause of action, they made out a prima facie case. While this court, on the previous appearance of this case, held that the allegations of the petition, which were on demurrer assumed to be true, were sufficient to set forth a cause of action, this court did not, of course, rule that the plaintiffs were entitled to the relief sought without proof of the allegations of the petition. Neither did this court consider defensive matters set forth in the answer, for as stated in the opinion such matters could not properly be considered on general demurrer.

This court has previously held that evidence of the character relied on by the plaintiffs in this case is of no probative value. In Patrick v. Holliday, 200 Ga. 259, 262 (36 S.E.2d 769), this court held: "A party's pleadings are not ordinarily evidence in his favor. Hawkins v. Chambliss, 120 Ga. 614 (48 S.E. 169); Mitchell v. Great Atlantic Pacific Tea Co., 7 Ga. App. 824 (2) (68 S.E. 343); Lancaster v. Ralston, 58 Ga. App. 404 (198 S.E. 839). The pleadings merely present the issues, and, where denied by the opposing party, must be established by aliunde proof."

In the Patrick case, the plaintiff offered the evidence of a witness, who testified that he had read the allegations of the petition and they were true. Nevertheless the court held this evidence to be of no probative value, stating: "It would be revolutionary to our system of jurisprudence to permit a plaintiff to establish the allegations of the petition and make out a prima facie case by merely testifying that the contents of the petition are true. The effect of such a ruling would prevent nonsuits, demand directed verdicts, eliminate new trials on the grounds of the insufficiency of evidence, and create many other drastic and abhorrent innovations affecting the law of allegata and probata. Many other reasons may be assigned for declining to give any credit to such testimony, but suffice it to say that in a suit of this nature such evidence has no probative value."

While in the Patrick case there was a witness on the stand. testifying and subject to cross-examination, in the instant case the plaintiffs sought to make out a case by the introduction of their pleadings only, thereby depriving the defendants of any right of cross-examination. The approval of such procedure would, indeed, be revolutionary to our system of jurisprudence. We have no hesitancy in ruling that the plaintiffs failed to make out a prima facie case and that the evidence demanded a verdict for the defendants.

Conceding that the trial court erroneously limited the time allotted counsel for the plaintiffs for argument (see, in this connection, Lovett v. Sandersville Railroad Co., 199 Ga. 238,33 S.E.2d 905), such a ruling will not require a reversal. An erroneous ruling is never reversible error unless it is harmful to the party complaining; and in this case the evidence demanded the verdict. See Hooks v. Frick Co.,75 Ga. 715, 718.

Judgment affirmed. All the Justices concur, except Bell, J.,absent on account of illness.