Clay v. Drake

66 Ga. App. 544

• Court: Court of Appeals of Georgia
• Decided: January 16, 1942
• Docket: 29276
• Status: Published

Opinion

Gardner, J.

It will be noted from the allegations of the petition that the money in question was paid to the defendant and that he still holds it. We think the petition sets out a cause of action, when considered under the rulings of Dennison Manufacturing Co. v. Wright, 156 Ga. 789 (120 S. E. 120); Strachan Shipping Co. v. Savannah, 168 Ga. 309, 315 (147 S. E. 555); Herrington v. State, 103 Ga. 318 (29 S. E. 931). We do not think it would make any difference that the ordinance in question was declared unconstitutional in another case made under it against a different party. See in this connection United States v. Rothstein, 187 Fed. 268 (109 C. C. A. 521).

In our opinion the money was paid involuntarily. The plaintiff is entitled to recover the same under the principles laid down in Parrot v. Wilson, 51 Ga. 255; Fischesser v. Heard, 42 Ga. 531.

Judgment reversed.

Broyles, O. J., and MacIntyre, J., concur.