Jones v. Nelson

The instant case is a companion to Guy v. Nelson, ante, and is controlled by the rulings made in that case except as to certain procedural questions, with respect to which it is here ruled as follows: 1. The elected county superintendent, having been unlawfully removed from office by the county board of education, could maintain the present action against the members of the board for the writ of mandamus to compel them to recognize him as the person entitled to hold the office and to discharge the duties thereof. The separate suit for the writ of quo warranto against the person purportedly elected by the board as his successor did not afford a complete and adequate remedy as against the board, since in that case the complainant or relator could only recover the office from the respondent and could not obtain an order requiring the members of the board to recognize him. See, in this connection, Akerman v. Board of School Commissioners of Cartersville, 118 Ga. 334 (45 S.E. 312); Holder v. Anderson, 160 Ga. 433 (128 S.E. 181); Patten v. Miller, 190 Ga. 123 (4), 146 (8 S.E.2d 757). The instant case is distinguished by its facts from Bonner v. State ex rel. Pitts, 7 Ga. 473, wherein the mandamus was sought, not against other officers, but solely against a rival claimant who was alleged to have assumed the duties of the office without authority of law.

2. Nor was the suit for mandamus against the members of the board subject to abatement because of pendency of the action for the writ of quo warranto, the parties and causes of action both being different. Cook v. State Highway Board, 162 Ga. 84 (2, 3) (132 S.E. 902).

3. The judge did not err in any of his rulings in reference to the pleadings, nor in entering a final judgment granting a mandamus absolute as prayed by the plaintiff.

Judgment affirmed. All the Justices concur, except Wyatt, J., who took no part in the consideration or decision of this case.

No. 15964. OCTOBER 15, 1947.