First National Bank v. Owens , 147 Ga. 599 ( 1918 )

Beck, P. J.

The First National Bank of Rome, Ga., as the transferee of three warrants drawn by the commissioners of roads and revenues of Floyd County, filed a petition for mandamus to require the treasurer of the county to pay the principal and the interest that had accrued thereon. Mandamus nisi was issued thereon. Subsequently the Third National Bank of Atlanta intervened as a party plaintiff, showing that it had two warrants drawn by the said commissioners. It is alleged that when first presented for payment the warrants were not paid for want of funds, which fact was entered upon the face of each warrant. Before the filing of the petition for mandamus the First National Bank of Rome made demand for the payment of principal and accrued interest from the date of issue at the rate of 7 per cent., which demand was refused on the ground that the warrants did not bear interest and the county treasurer could not legally pay interest. Thereupon the petitioner demanded payment of the principal of the warrants, with interest after the date when they had been presented, and, that being refused, demanded payment.of the principal with interest after January 2, 1917, the date upon which the warrants had been registered by the county treasurer. This demand was also refused. The principal of the warrants held by the intervenor had been paid, and it sought to compel the payment by the county treasurer of the interest merely. There was no issue of fact. The allegations of fact in the petition and intervention were admitted. Held, that the refusal of a mandamus absolute was not error. The facts, so far as they relate to the controlling question involved, are substantially as presented in Lettice v. American National Bank, 133 Ga. 874 (67 S. E. 187), as clearly appears from an inspection of the record in that case. See also, in this connection, 15 R. C. L. 17, 18; Board of Commissioners v. Haul, 17 L. R. A. (N. S.) 552, note (77 Kan. 717, 96 Pac. 45). Under the decision in the case oi,Lettiae v. Bank, supra, the ruling made in State v. Speer, 33 Ga. Supp. 93, is not controlling under the facts of this case.

No. 297. January 16, 1918. Rehearing denied February 25, 1918.

Petition for mandamus. Before Judge Wright. Floyd superior court. April 12, 1917.

Maddox & Doyal and Payne & Jones, for plaintiffs. J. Branham, for defendant.

Judgment affirmed.

All the Justices concur, except Fish, C. J., absent.