Hicks v. Liner , 205 Ga. 232 ( 1949 )

R. C. Hicks presented his petition for leave to file an information in the nature of quo warranto in the Superior Court of Walker County, and his information in connection therewith, alleging that he was the duly elected and qualified City Clerk, Tax Collector, and City Treasurer of Rossville, and seeking to inquire into the right of Clyde A. Liner to hold that office or to discharge its duties, and to keep in his possession certain books and records pertaining to the office, therein described. The applicant alleged that he was duly elected to office at an election held on December 4, 1948, that he thereafter duly qualified, and that the respondent's term of office expired on December 31, 1948. Upon presentation of the application for leave to file, an order was granted setting a hearing thereon for January 27, 1949. Neither the application for leave to file nor the information attached thereto was verified by the applicant. On the date fixed for the hearing the respondent interposed his demurrer to the application and information on several grounds, the 9th being as follows: "Respondent demurs thereto because said application and information is not verified as required by law." Upon this demurrer the trial court entered the following order and judgment: "The within demurrer is sustained and the petition of R. C. Hicks is dismissed." To this judgment the applicant excepted. Held:

1. "A petition for leave to file an information in the nature of quo warranto must be verified." McWilliams v. Jacobs, 128 Ga. 375 (2) (57 S.E. 509); Shaw v. DeVane, 169 Ga. 702, 703 (151 S.E. 347).

2. Where a demurrer to a petition contains several grounds, and the judgment on demurrer recites: "The within demurrer is sustained and the petition is dismissed." There is no presumption that the ruling was based on any particular ground of the demurrer, but the judgment will be treated as sustaining the entire demurrer upon all of the grounds, and the judgment will be affirmed if the petition was properly dismissed for any reason set forth in the demurrer. McClaren v. Williams, 132 Ga. 352 (2) (64 S.E. 65).

3. Neither the petition for leave to file an information in the nature of quo warranto nor the information attached thereto having been verified by the applicant in this case, and the demurrer of the respondent having attacked the proceeding upon this ground, the judgment of the trial court sustaining the demurrer and dismissing the petition is affirmed.

4. In view of the ruling above made, it is unnecessary to consider the other grounds of the demurrer.

Judgment affirmed. All the Justices concur.

No. 16604. APRIL 13, 1949.