Nichols v. Hampton , 198 Ga. 327 ( 1944 )

1. Where the only assignment of error in the bill of exceptions is to a judgment overruling the defendant's demurrer to a petition for mandamus, the writ of error must be dismissed. Code, §§ 64-110, 64-111; W. A. R. Co. v. State, 69 Ga. 524; Commissioners of Thomas County v. Hopkins, 118 Ga. 643 (45 S.E. 433); Walker v. Norris, 134 Ga. 518 (68 S.E. 70); Bridges v. Poole, 176 Ga. 500 (168 S.E. 577); Board of Education v. Sheffield, 177 Ga. 100 (169 S.E. 302); Ramsey v. Mingledorff, 183 Ga. 701 (189 S.E. 521); Dooly v. Gates, 192 Ga. 483 (15 S.E.2d 729); MacNeill v. Wood, 197 Ga. 237 (28 S.E.2d 747). We have been requested to review and overrule the above decisions upon the ground that they are unsound and violate the Code, § 6-701, and the constitution, Code, § 2-401. Upon review, the majority of this court regard them as being in harmony with the statute, Code, §§ 64-110 and 64-111, and adhere to the rulings made. The writer thinks that the decisions are unsound, an unwarranted extension of the mandamus statute, and a virtual destruction of the right to prosecute a motion for new trial. But they can be overruled only by the concurrence of all six justices, and until so overruled are binding upon the writer as well as the other members of this court.

2. On application of the above rule, the present writ of error, showing that subsequently to the judgment overruling the defendant's general demurrer to the petition for mandamus the case was tried before a jury, resulting in a verdict for the petitioner, and that a judgment of mandamus absolute was entered, but that the exception is only to the judgment overruling the general demurrer, must be dismissed.

Writ of error dismissed. All the Justices concur.

DUCKWORTH, J., concurs specially.

No. 15043. OCTOBER 6, 1944.