Rucker v. Stark , 209 Ga. 496 ( 1953 )

209 Ga. 496 (1953) 74 S.E.2d 74

RUCKER et al., for use, etc.
v.
Stark, Solicitor-General, et al.

18040.

Supreme Court of Georgia.

Argued January 12, 1953. Decided January 13, 1953.

Brannon & Brannon, J. B. G. Logan and Abit Nix, for plaintiffs in error.

Allison & Pittard, E. C. Stark, Joseph 1) D. Quillian, Wheeler, Robinson & Thurmond, Kimzey & Kimzey, Herbert B. Kimzey and J. N. Rainey, contra.

HAWKINS, Justice.

The Commissioners of Roads and Revenues of Banks County, Georgia, brought their petition for rule against the solicitor-general, the clerk of the superior court, and an ex-sheriff of the county, to require them to pay over to the county treasurer certain funds alleged to be in their hands arising from fines, forfeitures, and condemnation proceedings, which it is alleged the county is entitled to recover. The original petition alleged that it was brought under Code § 24-206 et seq. In the briefs for the plaintiffs in error it is insisted that they have a right to proceed under the provisions of Code (Ann. Supp.) § 27-2922 et seq. The exception her is to a judgment sustaining a general demurrer to the petition. Held:

While Code § 24-211 provides that, in making distribution of money in a rule instituted under that Chapter, the court shall proceed upon equitable principles, and while Code (Ann. Supp.) § 27-2924 provides that a proceeding under that Chapter "shall be in the nature of an equitable proceeding and be governed by all established rules and maxims of equity," the petition in the instant case contains no allegations showing any right in the plaintiffs to any equitable relief, and prays for none, but merely seeks a judgment against the respondents requiring them to pay over to the county treasurer certain sums of money alleged to be in their hands to which the county is entitled, It is a statutory rule against the named officers, in which neither the pleadings nor the prayers call for equitable relief, and it not a case of which this court has jurisdiction. Accordingly, it is transferred to the Court of Appeals. Elmore v. Southern Bank & Trust Co., 150 Ga. 811 (105 S.E. 474); Alsabrook v. Prudential Insurance Co., 174 Ga. 637 (163 S.E. 706); Atlanta Coach Co. v. Simmons, 181 Ga. 67 (181 S.E. 762); Robinson v. Lindsey, 184 Ga. 684 (192 S.E. 910); Regents of the University System of Georgia v. Carroll, 203 Ga. 292 (46 S. E. 2d, 496); Brantley Products Co. v. Hemphill, 206 Ga. 854 (59 S. E. 2d, 367).

Transferred to the Court of Appeals. All the Justices concur, except Atkinson, P. J., not participating.