Bell v. Bell

Court of Appeals of Georgia

Bell v. Bell

20 S.E.2d 214, 67 Ga. App. 379, 1942 Ga. App. LEXIS 422

CourtCourt of Appeals of Georgia

DecidedApril 25, 1942

Docket29534.

StatusPublished

This text of 20 S.E.2d 214 (Bell v. Bell) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Bell v. Bell, 20 S.E.2d 214, 67 Ga. App. 379, 1942 Ga. App. LEXIS 422 (Ga. Ct. App. 1942).

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Opinion

*382 Gardner, J.

(after stating the facts). Several questions are presented by the bill of exceptions and argued here, but we think one is controlling and disposes of the case without considering the others. That question is whether the record as detailed above presents a justiciable question. It is our opinion that it does not. Conceding for the purpose of determination of the issue now before us, but not deciding it, that a judge of the superior court had the authority, on October 15, 1940, to incorporate a municipality as set forth under the act of 1874, as contended by the plaintiffs in error, this court is without authority to review an order of incorporation passed pursuant to the authority conferred by such legislative act. In Mangham v. Mallory, 128 Ga. 430 (57 S. E. 688), that court held: “There is no provision in the law which authorizes any one to appear and object to the granting of the order directing the clerk of the superior court to issue the certificate of incorporation as provided in the Political Code, § 687, which provides for the granting of an order by the superior court directing the clerk of said court to issue a certificate of incorporation of a town or village; nor is there any provision for the review by this court, by writ of error or otherwise, of the action of that court in granting the order. This being so, the motion to dismiss the writ of error in this case must prevail.” The Mangham case was cited approvingly in Shreve v. Pendleton, 129 Ga. 374, 377 (58 S. E. 880, 12 Ann. Cas. 563). Plaintiffs in error cite the Shreve case as favorable to their contentions. Upon a careful reading of the Shreve case we find that it is authority contrary to the contentions of plaintiffs in error and is in accordance with the rulings announced in the Mangham case. In this connection we call attention to In Re Union Club, 142 Ga. 261 (82 S. E. 643). In the last-cited case the court, dealing with corporations other than municipal corporations, cited approvingly Mangham v. Mallory and Shreve v. Pendleton, supra.

We are not unmindful that the proceeding before us deals with the order of December 13, 1940, which at a subsequent term of court and by the court’s own motion, ex parte and without notice, purported to nullify the order of October 15, 1940, which purported to create a municipal corporation, and we are not unmindful that this is the gravamen of the argument of the plaintiffs in error on the particular question before us, Be it so, the whole proceeding *383 from its inception throughout was dealing with the same subject matter over which this court is without authority of review.

Judgment affirmed.

Broyles, G. J., and MacIntyre, J., concur.

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*382 Gardner, J.

(after stating the facts). Several questions are presented by the bill of exceptions and argued here, but we think one is controlling and disposes of the case without considering the others. That question is whether the record as detailed above presents a justiciable question. It is our opinion that it does not. Conceding for the purpose of determination of the issue now before us, but not deciding it, that a judge of the superior court had the authority, on October 15, 1940, to incorporate a municipality as set forth under the act of 1874, as contended by the plaintiffs in error, this court is without authority to review an order of incorporation passed pursuant to the authority conferred by such legislative act. In Mangham v. Mallory, 128 Ga. 430 (57 S. E. 688), that court held: “There is no provision in the law which authorizes any one to appear and object to the granting of the order directing the clerk of the superior court to issue the certificate of incorporation as provided in the Political Code, § 687, which provides for the granting of an order by the superior court directing the clerk of said court to issue a certificate of incorporation of a town or village; nor is there any provision for the review by this court, by writ of error or otherwise, of the action of that court in granting the order. This being so, the motion to dismiss the writ of error in this case must prevail.” The Mangham case was cited approvingly in Shreve v. Pendleton, 129 Ga. 374, 377 (58 S. E. 880, 12 Ann. Cas. 563). Plaintiffs in error cite the Shreve case as favorable to their contentions. Upon a careful reading of the Shreve case we find that it is authority contrary to the contentions of plaintiffs in error and is in accordance with the rulings announced in the Mangham case. In this connection we call attention to In Re Union Club, 142 Ga. 261 (82 S. E. 643). In the last-cited case the court, dealing with corporations other than municipal corporations, cited approvingly Mangham v. Mallory and Shreve v. Pendleton, supra.

We are not unmindful that the proceeding before us deals with the order of December 13, 1940, which at a subsequent term of court and by the court’s own motion, ex parte and without notice, purported to nullify the order of October 15, 1940, which purported to create a municipal corporation, and we are not unmindful that this is the gravamen of the argument of the plaintiffs in error on the particular question before us, Be it so, the whole proceeding *383 from its inception throughout was dealing with the same subject matter over which this court is without authority of review.

Judgment affirmed.

Broyles, G. J., and MacIntyre, J., concur.

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20 S.E.2d 214, 67 Ga. App. 379, 1942 Ga. App. LEXIS 422, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bell-v-bell-gactapp-1942.

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