Coleman v. Board of Education , 1911 Ga. LEXIS 248 ( 1911 )

Holden, J.

The Civil Code (1910), § 1534, provides for an election to be held in any county to determine whether or not there shall he local taxation therein to supplement the public-school iund received from the State by such county, and provides that the returns of any election held shall he made to the ordinary of the county, who shall declare the result; and further provides, “If the election is carried for local taxation, the' ordinary or hoard of county commissioners, whichever levies the county tax, shall levy a local tax, as recommended by the county board of education, upon all the property of the. county, not to exceed one half of one per cent.” An election was held in Emanuel county under the provisions of this section, and the ordinary declared the result to be in favor of local taxation. The plaintiffs in error, taxpayers of the county, brought suit against the county, its hoard of education, and its hoard of roads and revenue commissioners, alleging, among other things, that the vote at the election in one precinct of the county should not have been counted in consolidating the returns and declaring the result of the election, because the election therein was hold at a place other than a lawfully established precinct, and that the exclusion of such vote wo'uld have worked a change in the result of the election. Complainants prayed “that the court inquire into the legality of said election, and into the truth of all complaints herein made; and that the returns he counted, and that the court inquire into all errors alleged, and decide whether said tax can he legally and constitutionally levied upon the property of petitioners and all other citizens of said county similarly situated,” and fqr an injunction against the collection of any tax by reason of said election, and for general relief. Upon the trial of the case the court directed a verdict in favor of the defendants, and the plaintiffs excepted. The bill of exceptions designates as tlie defendants therein, “Board of Education of Emanuel County et al.” The acknowledgment of service was by named persons, “Attys. Deft, in error.” Held:

1. The county, at least, was a necessary party to the bill of exceptions.

2. Under the former rulings of this court prior to the act approved August 21st, 1911, the abbreviations “et al.,” when occurring in a bill of exceptions after the name of a party therein designated, can not be held to include any other person who figured as a party in the trial court; and an acknowledgment of service for “defendant in error” or for “defendants in error,” does not cover any person who was not, at the time such acknowledgment was entered upon the bill of exceptions, actually named or designated therein as a party defendant in error. Orr v. Webb, 112 Ga. 806-8 (38 S. E. 98); Acts 1911, pp. 149, 150.

September 25, 1911. Sajfold & Larsen, for plaintiff in error. R. L. Gamble and Williams <£• Bradley, contra.

3. If the fourth and fifth sections of the act approved August 21st, 1911, have any application to a case argued in this court before its passage, no motion has been made to make the county a party to the bill of exceptions as one of the defendants in error therein, in accordance with the provisions.of the fifth section of the act. ,

4. The Board of Education of Emanuel County being the only party defendant in error to the bill of exceptions, the motion to dismiss the writ of error because of this fact must be sustained.

Writ of error dismissed.

Reek, J., absent The other Justices concior.