Dobbins v. City of Marietta

97 S.E. 439, 148 Ga. 467, 1918 Ga. LEXIS 375

• Court: Supreme Court of Georgia
• Decided: October 15, 1918
• Docket: No. 921
• Status: Published

Opinion

Atkinson, J.

No judge can sit in any cause or proceeding in which he is pecuniarily interested, or related to either party within the fourth degree of consanguinity or affinity. Civil Code, § 4642. The word “party” thus referred to “would include any one pecuniarily interested in the result of the ease,” and would not be limited “to a person who’ is a party to the record.” Roberts v. Roberts, 115 Ga. 259 (41 S. E. 616, 90 Am. St. R. 108); State Mutual Life Insurance Co. v. Walton, 142 Ga. 765 (83 S. E. 656). See also Mayor &c. of Columbus v. Goetchius, 7 Ga. 139; Central of Ga. Ry. Co. v. Hammond, 109 Ga. 383 (34 S. E. 594).

No. 921. October 15, 1918.

Petition for injunction. . Before Judge Morris. Cobb superior court. March 30, 1918.

D. W. Blair and Fred. Morris,'for plaintiffs. Gordon B. Gann and J. Z. Foster, for defendants.

2. Where a municipal corporation employs a contractor to pave a designated street and sidewalk within the limits of the city, the cost of which is to be borne in part by assessments against abutting-property owners, and in anticipation of such assessments the corporation borrows money from a stranger to be applied in paying the contractor, and a suit is brought by some abutting-property owners and taxpayers, to • enjoin the payment of the note executed by the city for the borrowed money, abutting-property owners and taxpayers not parties to the suit would be pecuniarly interested in the result of such suit, within the meaning of the provision of the code referred to in the first lieadnote; and the judge before whom the case was pending upon application for interlocutory injunction, being related within the fourth degree of consanguinity to some of the owners, erred in not holding himself disqualified from presiding in the case; It is unnecessary to deal with the other grounds of disqualification'urged. All that was done at the interlocutory hearing was nugatory, and no' ruling is made upon the questions relating to the merits of the case,

Judgment reversed.

All the Justices concur, except Beck, P. J., and Gilbert, J., dissenting.