Board of Education of Madison County v. Fowler , 192 Ga. 35 ( 1941 )

Where on the trial of a suit for mandamus it appeared without dispute that the defendants, pending the action, had "complied with the things sought to be compelled." assessment of costs against them on dismissing the suit was not error.

No. 13627 APRIL 16, 1941. 1. Under our statutes, while in equity cases "it is the province of the judge . . to determine upon whom the costs shall fall" (Code, § 37-1105), and "this court will not interfere unless [his] discretion has been abused" (Hicks v.Atlanta Trust Co., 187 Ga. 314 (2), 315, 200 S.E. 301, and cit.; Fitzgerald v. Vaughn, 189 Ga. 707 (3), 711,7 S.E. 78), yet in all civil actions at law, "except as otherwise provided, the party who shall discontinue, fail, or be cast in such suit shall be liable for the costs thereof." Code, § 24-3401. "The writ of mandamus is a common-law writ with which equity has nothing to do." Gay v. Gilmore, 76 Ga. 725, 726;Wheeler v. Walker, 55 Ga. 256 (2), 258; Mayor c. ofBrunswick v. Dure, 59 Ga. 803, 805; Code, §§ 64-101 et seq. Accordingly, the petition in this case by trustees of school districts, against a county board of education, seeking only a mandamus nisi and absolute, the case falls within the statutory rule controlling civil actions at law.

2. The sole question presented by this bill of exceptions, brought by the defendant members of the board of education, is whether the judge in dismissing the petition properly assessed the costs against them, where it appeared without dispute at the hearing and the order recites that "defendants have complied with the things sought to be compelled." On that question it is the rule in this State that where, pending the suit, the defendant pays the amount sued for, or effects a settlement by paying cash and giving notes for the balance, the costs in the case become chargeable to the defendant, in the absence of any contrary agreement between the parties. Wrenn v. Davis, 139 Ga. 374 (77 S.E. 168); Graham v. Massengale Advertising Agency,4 Ga. App. 826 (62 S.E. 567). These holdings accord with what seems the weight of outside authority, that "where . . the suit is dismissed because of some subsequent act by the defendant, making unnecessary a further prosecution of the suit, the plaintiff is entitled to costs." 14 Am. Jur. 11, § 14; 20 C. J. S. 319, 320, § 66, and cit.; Cicero Lumber Co. v. Cicero, 176 Ill. 9 (51 N.E. 758, 42 L.R.A. 696, 68 Am. St. Rep. 155). It has been so held, even though on the merits of the case the defendant might have prevailed, "the reason assigned being that settlement is equivalent to a confession of judgment." 15 C. J. 89, § 167, and cit. A like rule controls in the present case, where the purposes of the mandamus petition were accomplished by the subsequent acts of the defendants, thus obviating the necessity for further proceeding, since, under such circumstances, the defendants were the failing parties within the meaning of the statute. Therefore the court did not err in assessing the costs against them.

Judgment affirmed. All the Justices concur.