Dumas v. Rigdon , 1921 Ga. LEXIS 218 ( 1921 )

Beck, P. J.

(After stating the foregoing facts.) Under the pleadings and the evidence in the case the court did not err in refusing the injunction. The bonds in question were duly validated in accordance with the provisions of the Civil Code (1910), §§ 445 et seq., relating to bonds and their validation. Questions of whether the law in regard to laying off the county into school districts had been complied with, and whether other steps were taken by the proper county authorities to make this laying off and division of the county into school districts comformable to law as embodied in sections 1531 et seq. of the Civil Code, upon the subject of school districts and local tax for public schools, could and should have been made in the proceedings to validate the bonds, the legality of which is now challenged.

The school district here in question was created in June, 1918. Shortly thereafter an election to determine whether bonds should be issued was held, and in due course the bonds were validated, the order validating the bonds having been passed on August 17, 1918. On June 13, 1919, A. W. Whiddon, a citizen and taxpayer of the Chula school district, filed his petition against I. M. H. Fletcher, L. W. Whiddon, and A. E. Whiddon, trustees of the district, in which the legality of the issuance of the bonds in question .was attacked, alleging that they had not then been sold, but the trustees of the school district were then negotiating for their sale and were about to sell them; and praying for an injunction to prevent the sale. The judge refused the injunction. The petitioner sued out a writ of error to this court; and it was held, in deciding the case: “Where an election, held to determine whether bonds should be issued for the purpose of building and equipping a schoolhouse in a local school district, resulted in favor of such issuance, and the bonds were duly validated in accordance with the terms of the Civil Code (1910), § 445 et seq., a citizen and taxpayer of the district who could have made himself a party to the proceedings to validate the bonds, but failed to do so, was concluded by the judgment rendered, and could not thereafter enjoin the levy and collection of a tax to pay the interest and principal of the bonds, and the issuance and sale, on the ground that there had never been levied in said district as a unit, distinguished from other districts of said county and from the county itself, a local tax for school purposes as provided by the act of 1912 (Acts 1912, p. 176; Park’s Ann. Pol. Code, § 1545 (a)).” Whiddon v. Fletcher, 150 Ga. 39 (102 S. E. 350). The illegality of the bonds in that case was urged, upon different grounds, it is true, from that taken here; and the plaintiffs in error insist that it was a friendly suit. Nevertheless the petitioners could have joined in that suit and have raised the grounds of illegality here set forth, and could have carried on the litigation in a manner entirely serious and not open to the charge that it was a friendly suit. We do not rule that the suit of Whiddon v. Fletcher and the decision in that case would sustain the plea of res adjudicata; but it should be taken into consideration in passing upon the question as to whether the judge properly refused the injunction in the present case; and the decision rendered in the Whiddon case is directly applicable to the question presented here. And it is not amiss to state here that there is no allegation that the bonds in question have not been passed into the hands of innocent purchasers. And that such is the case, the length of time since their issuance and the failure upon the part of the petitioners to make denial, authorize us to assume.

■Judgment a/]irmed.

All the Justices concur.