Mayor of Savannah v. Monroe , 22 Ga. App. 190 ( 1918 )

Luke, J.

The record in this case discloses the following material facts: John H. Monroe held the office of chief engineer of j;he fire department of the City of Savannah. He was charged with insubordination, and the mayor and aldermen of that city tried him on that charge, and on April 18, 1916, adjudged him guilty and dismissed him from office. His petition for certiorari to review that judgment was duly sanctioned, filed, served, and answered; but before the certiorari was heard the defendant city moved to dismiss it, on the ground, among others, that, because of certain facts it set forth, “the rights claimed in his petition for certiorari no longer exist, and to render a decision upon any issue raised by the certiorari will at this time be vain and useless.” Monroe filed a reply to that motion, admitting the facts set up by the defendant’s motion, but averring that he had a claim against the city for his salary from the date of his expulsion to the date of the expiration of his term of office, and that it was necessary for the certiorari to proceed in order that his rights in that behalf might be subsequently adjudicated. Hpon considering the defendant’s motion to dismiss the certiorari, together with the plaintiff’s reply thereto, the superior court, on April 12, 1917, entered upon the motion a judgment as follows: “The within motion is sustained and the entire certiorari proceedings herein are dismissed, without prejudice to the rights of the plaintiff in certiorari in the case of John H. Monroe vs. The Mayor and Aldermen of the City of Savannah, now pending in this court and returnable to the June term thereof.”

Both parties apparently acquiesced in that ruling until May 24, 1917, during the same term, .at which time the defendant filed a motion in arrest of that part of the judgment quoted above which provides that the judgment shall be “without prejudice to the plaintiff in certiorari” in another proceeding. The grounds alleged for arresting the judgment were that it was not within the jurisdiction of the court and was not authorized by the pleadings. IJpon the hearing the motion in arrest of judgment was overruled. In the principal bill of exceptions now before this court the city assigns error upon the latter judgment only. In a cross-bill of exceptions Monroe assigns error upon the judgment dismissing the certiorari.

The headnotes need no elaboration.

Judgment on the main hill of exceptions affirmed; cross-hill dismissed..

Wade, G. J., and JenJcins, J., concur.