Wallis v. Staples

Supreme Court of Georgia

Wallis v. Staples

154 S.E.2d 207, 223 Ga. 256, 1967 Ga. LEXIS 485

CourtSupreme Court of Georgia

DecidedMarch 23, 1967

Docket23995

StatusPublished

Cited by5 cases

This text of 154 S.E.2d 207 (Wallis v. Staples) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wallis v. Staples, 154 S.E.2d 207, 223 Ga. 256, 1967 Ga. LEXIS 485 (Ga. 1967).

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Opinion

Nichols, Justice.

The plaintiff filed a petition which as finally amended sought an injunction prohibiting the Carroll County Board of Education from complying with a resolution adopted by it ex parte pursuant to the Act of 1953 (Ga. L. 1953, Nov. Sess., p. 282; Code Ann. § 32-954), until a hearing was granted to plaintiff and others on the issue covered by such *257 resolution. The petition alleged a demand and refusal for such hearing, that the action taken was illegal and void, and that the plaintiff was without an adequate remedy at law. Demurrers were filed to the plaintiff’s petition and upon a hearing thereon the trial court sustained seven grounds of general demurrer and dismissed the petition. It is from this judgment that the plaintiff appeals. Held:

Argued March 14,1967 — Decided March 23, 1967. C. C. Perkins, for appellants. Tisinger & Tisinger, Peyton Hawes, Jr., Jones, Bird & Howell, Eugene T. Branch, for appellees.

1. Where a patron of a school district seeks to have reviewed an ex parte decision of a county board of education consolidating and re-organizing the schools in the school district seeking a hearing before the board, and the board refuses such request, the proper remedy is mandamus to require the board of education to provide a hearing and decision on the matter in controversy. See Mallard v. Warren, 222 Ga. 731 (152 SE2d 380).

2. Where plaintiffs have an adequate remedy at law by petition for mandamus equity is without jurisdiction of the case. See Nichols v. Board of Educ. of Richmond County, 180 Ga. 84 (178 SE 292), and citations.

3. The petition failed to set forth a cause of action in equity and was subject to the defendant’s demurrer attacking it on such ground. Accordingly, the judgment of the trial court sustaining such demurrer and dismissing the petition was not error for any reason assigned, and in view of such decision the remaining grounds of demurrer need not be passed upon.

Judgment affirmed.

All the Justices concur.

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Nichols, Justice.

The plaintiff filed a petition which as finally amended sought an injunction prohibiting the Carroll County Board of Education from complying with a resolution adopted by it ex parte pursuant to the Act of 1953 (Ga. L. 1953, Nov. Sess., p. 282; Code Ann. § 32-954), until a hearing was granted to plaintiff and others on the issue covered by such *257 resolution. The petition alleged a demand and refusal for such hearing, that the action taken was illegal and void, and that the plaintiff was without an adequate remedy at law. Demurrers were filed to the plaintiff’s petition and upon a hearing thereon the trial court sustained seven grounds of general demurrer and dismissed the petition. It is from this judgment that the plaintiff appeals. Held:

Argued March 14,1967 — Decided March 23, 1967. C. C. Perkins, for appellants. Tisinger & Tisinger, Peyton Hawes, Jr., Jones, Bird & Howell, Eugene T. Branch, for appellees.

1. Where a patron of a school district seeks to have reviewed an ex parte decision of a county board of education consolidating and re-organizing the schools in the school district seeking a hearing before the board, and the board refuses such request, the proper remedy is mandamus to require the board of education to provide a hearing and decision on the matter in controversy. See Mallard v. Warren, 222 Ga. 731 (152 SE2d 380).

2. Where plaintiffs have an adequate remedy at law by petition for mandamus equity is without jurisdiction of the case. See Nichols v. Board of Educ. of Richmond County, 180 Ga. 84 (178 SE 292), and citations.

3. The petition failed to set forth a cause of action in equity and was subject to the defendant’s demurrer attacking it on such ground. Accordingly, the judgment of the trial court sustaining such demurrer and dismissing the petition was not error for any reason assigned, and in view of such decision the remaining grounds of demurrer need not be passed upon.

Judgment affirmed.

All the Justices concur.

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154 S.E.2d 207, 223 Ga. 256, 1967 Ga. LEXIS 485, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wallis-v-staples-ga-1967.

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