1. The treasurer of a county, against whom a mandamus proceeding is brought by a court reporter to enforce the payment of a claim alleged to be due him as official court reporter, may set off in the mandamus proceeding any amounts due the county by the reporter. In such a proceeding, neither the treasurer nor the county can obtain a money judgment against the reporter.
2. In a mandamus proceeding brought by a court reporter against the county treasurer, the county may intervene for the purpose of protecting the rights of the county as to the issues involved in such proceeding.
Nos. 15642, 15660. NOVEMBER 14, 1946.
H. E. Nichols filed his petition against C. O. Walden, as Treasurer of Floyd County, seeking the writ of mandamus. The facts appear in Walden v. Nichols, ante 568. Floyd County filed its intervention in that case, adopting the demurrer and answer of Walden, and sought by way of cross-bill a judgment against Nichols in the sum of $9515.80 for various alleged overpayments in previous years and sums alleged to have been paid to Nichols in excess of what he had actually earned. The intervention on the part of Floyd County was objected to on the following grounds: "(a) That said action in which it is sought to intervene is a common-law action and no intervention can be allowed by the court of any third person in an action at law; (b) that said motion seeks by indirection a new and distinct party to an action at law; (c) that the intervention sets
forth a news and distinct cause of action." The trial court overruled the objections. Exceptions to this judgment were duly preserved by exceptions pendente lite, and are made the subject-matter of the cross-bill filed in this case. Nichols demurred to the intervention on various grounds. The following judgment was rendered upon the demurrer: "The within demurrer coming on for hearing and after argument, it is considered, ordered, and adjudged by the court that said demurrer be, and the same is hereby, sustained to all of the intervention except the adoption of the demurrer and answer of the defendant Walden; leave that in, and let the county defend this case the same as the treasurer is defending it, and strike the cross-action; the court is of the opinion that is a separate and distinct cause of action." The main bill of exceptions complains of this order and the final judgment quoted in case No. 15641.
1. In this case the answer of the county by way of cross-bill sought a judgment against Nichols for amounts alleged to have been improperly collected by him. We have held in case No. 15641 that the facts pleaded could be urged as a defense to the mandamus proceeding, but could not be the basis of a judgment against Nichols in the mandamus proceeding. All the questions raised by the main bill of exceptions in this case are controlled by the ruling made in Walden v. Nichols, ante 568.
2. The only question raised by the cross-bill of exceptions is whether or not Floyd County was a proper party to intervene in the mandamus proceeding. It is earnestly insisted that the county can not intervene in this proceeding, because of language used inLamb v. Toomer, 91 Ga. 621 (17 S.E. 966). The court there said: "The act of October 12, 1885, `to fix the pay of official stenographic reporters,' declares that these officers shall be paid for their services in `taking down the testimony in the trial of such criminal cases as are required by law to be reported,' on the certificate and order of the judge of the superior court. County authorities, such as boards of commissioners of roads and revenues, have neither the right nor the power to audit, order paid, or otherwise act upon orders thus granted. Consequently, the writ of mandamus does
not lie to compel them to do any of these things." When this language was used the question before the court was whether a court reporter should proceed by mandamus against the board of commissioners or the treasurer, and the ruling of the court was that, since the act sought to be performed could be performed by no one other than the county treasurer, he was the only person against whom the mandamus could be brought. We do not think that the ruling there made can be construed to mean that a county can not intervene in a mandamus proceeding brought against the treasurer to enforce what the county contends to be an unfounded or unjust claim against the funds belonging to the county.
Clarke v. Wheatley, 113 Ga. 1074 (39 S.E. 437), is cited. The court there said: "It is not the right of a stranger to a pending cause to intervene therein, unless it is necessary to his protection that he be allowed to become a party to the litigation and thus afforded an opportunity to resist the rendition of a judgment which would operate to his prejudice." If the contention of the county in this case is true, can it be said that it is not "necessary to [its] protection that [it] be allowed to become a party to the litigation and thus afforded an opportunity to resist the rendition of a judgment which would operate to [its] prejudice?" We think not. Whatever judgment is rendered must be paid out of county funds. There is a vast difference between saying that a county can not be made defendant in a mandamus proceeding, and saying that it can not intervene in order to protect the interest of the county in a mandamus proceeding which has been properly brought against the county treasurer. We think that the county can intervene.
Judgment affirmed in part, and reversed in part on the mainbill of exceptions; affirmed on the cross-bill. All the Justicesconcur, except Duckworth, J., who dissents.