Veal v. Beall

1. The cause of action not being joint, the ruling on a demurrer dismissing the action as to some of the defendants can not be excepted to after the plaintiff has proceeded with the action against the remaining defendants to a final judgment.

2. Where an answer states any valid defense to the suit, it is not error to overrule a general demurrer thereto. And where a special demurrer attacks 13 paragraphs of the answer on the ground that they are immaterial and irrelevant, and are mere conclusions, such demurrer is too vague and uncertain to require a ruling thereon; but even if such demurrer had been good as to some of the paragraphs, where the answer elsewhere alleged a valid defense, the judgment will not be reversed because of the error in overruling such demurrer.

3. Where the law provides that the county commissioners shall in their discretion apply the fund involved to paying court expenses or education or both, depending on the needs, and the evidence fails to show that there was no need for such fund to pay the expenses of the courts, a verdict against the plaintiff, who sought by writ of mandamus to compel the county commissioners to apply all of such fund to education, was demanded.

No. 12931. SEPTEMBER 15, 1939. REHEARING DENIED OCTOBER 14, 1939. Helen Livingston Veal brought a petition for the writ of mandamus against J. L. Rossee, W. J. Beall, T. W. Scott, T. H. Resseau, and T. A. Gregory as members of the board of education of Putnam County, P. C. Garris as superintendent of schools, and H. G. Leverette, B. E. Gooch, and N. D. Horton as members of the board of commissioners of roads and revenues of Putnam County, alleging that under proper contracts with the school authorities she had taught school in Putnam County and that $245 of the contract salary earned by her was past due and unpaid; that her demands for payment had been refused on the ground that no funds were available for such purpose; that appeals had been made to the board of commissioners for funds with which to pay her salary; that during 1938 the commissioners of roads and revenues received $7500 as their share of the proceeds of the discount of the future rentals of a State-owned railroad, which were appropriated to the county solely for the expenses of operation of courts and schools, as the need might be, in the discretion of the county commissioners; that $3797 of this fund had been paid to the county board of education and used for school purposes, but the commissioners refused to pay any more of said fund to the board of education; that no part of the fund had been used for court purposes, all necessary expenses of the court having been met by a county-wide tax levy for that purpose; that the board of education is badly in debt, but is limited in its tax rate to five mills for school purposes; that the commissioners have several thousand dollars cash in bank; that the commissioners are abusing their discretion and acting arbitrarily in refusing to pay to the board of education all of the funds derived from the discount of the State-owned railroad rentals; and that it is the public and official duty of the county commissioners to pay said fund to the county board of education to be used to meet in part its unpaid obligations. The petition prayed that the commissioners be compelled to pay to the board of education all of the $7500 railroad rentals, and that the members of the board of education be required to pay to petitioner out of such funds the $245 past-due salary for her services.

The members of the board of education and the county school superintendent filed a demurrer to the petition, on the grounds of misjoinder of parties, misjoinder of causes of action, and failure to show that the contract relied upon by the relator did not involve the expenditure of funds in excess of the appropriation for the current year. They filed an answer admitting the material portions of the petition, except that demand had been made for payment, and alleging that the only reason for non-payment was lack of funds. This demurrer was sustained, and the action was dismissed as to these defendants. To this ruling exceptions pendente lite were filed.

The commissioners answered, denying that they had refused on demand to pay over any funds due to the board of education, and alleging that for the fiscal year 1938 there was a deficit in the operation of the courts of said county of $4474.07; that the courts of the county are not self-supporting; that exactly half of the funds in question had been turned over to the board of education for school purposes; and that in view of the deficit in the operation of the courts, as alleged, in the exercise of the discretion vested in the board by the act appropriating the fund they are authorized to use the other half to pay expenses of the courts. The relator demurred to this answer, on the ground that it stated no ground for denying the relief sought. She demurred specially to certain paragraphs, on the ground that they were irrelevant, immaterial, and stated mere conclusions of the pleader. The court overruled the demurrer, and relator excepted.

On the trial H. G. Leverette, chairman of the board of commissioners, testified, that the commissioners put the W. A. rentals money in the bank in the general fund, and paid half of it to the board of education; that the expenses of the courts of Putnam County are paid up to date, except the present term; that the courts have never been in debt since witness has been a member of the board of commissioners, these expenses having at all times been paid as they accrued. It was admitted that the board of commissioners had on deposit in the general fund $24,000, that the county had net assets of $160,000, and that the board of education owed an old debt of $8500. Garris testified, that he was county school superintendent; that the board of education owed for the 1938-1939 term of the county schools about $11,500 in teachers' salaries, $1500 to bus drivers, and another debt of $250; and that the schools have no funds to pay these obligations. The court directed the jury to return a verdict against the relator, on which judgment was entered; and the relator excepted. 1. Where more than one person are sued as defendants on a joint cause of action, a direct bill of exceptions to this court will not lie to a ruling dismissing the action as to some of the defendants, but the plaintiff must proceed against the remaining defendants to a final judgment before he is entitled to bring the antecedent ruling to this court for a review. Johnson v. Motor Contract Co., 186 Ga. 466 (198 S.E. 59). But where a suit is brought against a number of defendants not on a joint cause of action, a direct bill of exceptions must be taken to a ruling dismissing the action as to some of the defendants; and if the plaintiff proceeds to judgment against the remaining defendants, he will be held to have waived his right to have reviewed the ruling dismissing the petition as to certain defendants. Ellis v.Almand, 115 Ga. 333 (41 S.E. 642); Kollock v. Webb,113 Ga. 762 (39 S.E. 339); Hodges v. Seaboard Loan SavingsAsso., 188 Ga. 410 (3 S.E.2d 677). Accordingly in the present suit, which was not based upon a joint cause of action, when the plaintiff, after the ruling dismissing the action as to the county board of education and the county school superintendent, proceeded with the trial of the case against the remaining defendants to final judgment, she waived her right to have reviewed the ruling complained of, and can not be heard by this court on exceptions thereto taken after the final judgment.

2. The sole relief prayed for by the plaintiff against the county commissioners was that they be required to deliver the funds involved to the board of education. The response of the commissioners alleged that there was at that time a deficit of more than $4000 in the available funds for the payment of the expenses of the courts of the county. According to the allegations of the petition, the funds sought by petitioner were less than $4000; and since the act appropriating to the county the funds involved expressly provided that the same should be used for the payment of the expenses of the courts or for education, or for both, in the discretion of the county commissioners, depending upon the needs, the demurrer to the plea of the commissioners, on the ground that it alleged no valid defense, should have been overruled if the allegations of that plea or response stated any valid reason why the prayer for relief against these defendants should not be granted. Since the defendants were authorized, under the act, to use any part or all of the fund for the payments of the expenses of the courts, provided only that there was a need for such fund, and since the answer alleged a need in the court expenses of more than the amount available to cover the deficit, it stated a valid defense to the action, and constituted a reason why the defendants under the law may not be required to pay over the fund to the county board of education; and thus the judgment overruling the general demurrer was not error. In one ground of the demurrer 13 paragraphs of the answer were specially attacked on the ground that they were immaterial, irrelevant, and stated mere conclusions of the pleader, without showing wherein the portions of the answer attacked were subject to the criticisms made. A special demurrer being a critic, it must itself be free from criticism. Lovett v. Arnall Merchandise Co., 182 Ga. 356 (2-b) (185 S.E. 315); Alford v. Davis, 21 Ga. App. 820 (95 S.E. 313); Katz v. Turner, 49 Ga. App. 81 (174 S.E. 167). The special demurrers were too vague and indefinite to raise any question for decision by the court, and show no cause for reversal. Askew v. Thompson, 129 Ga. 325 (3) (58 S.E. 854). Moreover, even if the demurrers were good, and if certain of the paragraphs attacked were immaterial and others stated mere conclusions of the pleader, and if it was error to overrule the special demurrers thereto, these grounds of demurrer did not attack the material portions of the answer wherein a valid defense was stated, and the judgment will not be reversed because of such error. Hill v. Horsley, 142 Ga. 12 (2) (82 S.E. 225); Federal Land Bank of Columbia v. Roberts, 177 Ga. 668 (2) (171 S.E. 135).

3. On the trial the evidence showed a very definite and distressing need on the part of the schools for money, and while the evidence showed that the expenses of the courts had been paid up to the then present term it was silent as to whether or not there were available funds to pay the expenses of the present term of court and as to the amount of such expenses. To entitle plaintiff to the relief prayed the burden was upon her to prove not only a financial need of the funds on the part of the schools, but also to prove that there was no need for funds with which to pay the expenses of the courts. Under the act, if there was a need on the part of both the courts and the schools, in the exercise of the discretion given to them by the act the commissioners are authorized to apply all of the funds to either the payment of court expenses or to education, or a part to one and a part to the other. The burden was upon the plaintiff to offer evidence to show that the county commissioners would grossly abuse their discretion unless such funds were paid to the board of education, as prayed in the petition. To the extent that the evidence failed to show that there were available funds sufficient to pay the expenses of the courts, the plaintiff failed to carry the burden, and the evidence demanded the verdict against her.

Judgment affirmed. All the Justices concur.