Howard v. Gray

65 Ga. 182

• Court: Supreme Court of Georgia
• Decided: February 15, 1880
• Status: Published

Opinion

Jackson, Justice.

The only error insisted upon here in this cause is that the motion to set aside the judgment which dismissed the action of Tumlin, plaintiff’s intestate, against the county of Bartow, in 1871, for non-payment of taxes, could not be made until the county was represented in court by the commissioners of roads and revenues, under the act of 1874, p. 331, which act transferred all such business from the ordinary to those commissioners. The suit was pending against the ordinary in 1871 when dismissed, and the motion to vacate that judgment was made in 1876, after the act of 1874 was passed. And the point made by the plaintiff in error, is that the commissioners should have been made parties in 1876, when the last mo-, tion was made, or before it was acted on. If the point had been made in the court below, perhaps the commissioners would have been made parties, and all difficulty would have disappeared; but the point jvas not made there at all, as certified by the presiding judge, and therefore it is not for review here. The case is reinstated, and before it is further proceeded with to trial, the commissioners can be made parties, if necessary, and no harm will be done to the county. The judgment, for these reasons, is affirmed. Besides, it is difficult ,to see how the ordinary, if not a party, brought the case here by bill of exceptions. If the county was not properly represented by him in the court below, where he filed an answer for the county on the merits, how does he come to represent it here ?

Judgment affirmed.