BAKER v. GEORGE et al., 265 Ga. 573, 458 S.E.2.d 830 (1995)
Linked as:
Summary
Judgment affirmed in part and reversed in part in Case No. S95A0910. Judgment affirmed in Case No. S95A0911. Benham, C. J., Fletcher, P. J., Sears, Hunstein and Thompson, JJ., concur.
Summary
Judgment affirmed in part and reversed in part in Case No. S95A0910. Judgment affirmed in Case No. S95A0911. Benham, C. J., Fletcher, P. J., Sears, Hunstein and Thompson, JJ., concur.
Text
Rogers, Magruder, Sumner & Brinson, Clay M. White, for Baker.Brinson, Askew, Berry, Seigler, Richardson & Davis, C. King Askew, for Hunter.
Appellants in Case No. S95A0910 are voters (Voters) of Cave Spring, a city in Floyd County, and appellant in Case No. S95A0911 is the election superintendent (Superintendent) of that city. Appellees in both cases are four of the five councilmen (Councilmen) of Cave Spring.
Voters initiated a recall effort against Councilmen and submitted ostensibly completed recall petitions to Superintendent. After Superintendent certified the legal sufficiency of the Voters' recall petitions, Councilmen filed suit in the Superior Court of Floyd County. Alleging that the Voters and Superintendent had failed to comply with certain provisions of the Recall Act, OCGA
Voters and Superintendent filed separate notices of appeal from
the trial court's order. There being an overlap of issues and enumerations of error, the two cases are consolidated for disposition on appeal.
1. Voters and Superintendent urge that, insofar as Councilmen had an adequate legal remedy under the Recall Act itself, it was error for the trial court to entertain Councilmen's suit for equitable relief. According to them, Councilmen's legal remedy was an action for mandamus as authorized by OCGA
If the election superintendent fails to comply with [the Recall Act], any elector may apply, within ten days after such refusal, to the superior court for a writ of mandamus to compel the election superintendent to perform his or her official duties.
This is not a case wherein an elector contends that there has been a refusal on the part of Superintendent to perform her official duties under the Recall Act. It is a case wherein Councilmen, as elected officials, contend that Superintendent's actual past performance of her official duties was in non-compliance with the Recall Act and that, as the result of that non-compliance, an unauthorized recall election will be scheduled. Mandamus is not a proper remedy to compel the undoing of acts which already have been completed. Wilson v. Sanders,
2. Voters and Superintendent urge that it was error for a judge of the superior court of any county other than Floyd to hear this equity case.
It has long been the law of this state that "[a]ny judge of the superior court of the State is competent to preside on the trial of any case, civil or criminal, in the superior court of any county." Daniels v. Towers,
Moreover, the trial court's grant of an interlocutory injunction was not based entirely upon its finding of irregularities and violations of the Recall Act attributable to Voters. The trial court also found that, in the performance of her official duties, Superintendent herself had failed to comply with certain provisions of the Recall Act and there is no contention that the finding in this regard is erroneous. An election official's non-compliance with his or her official mandatory duties under applicable statutory provisions will serve to invalidate a scheduled election. Committee For New Cobb County Revenue v. Brown, supra at 368 (2).
"Generally, the trial court has broad discretion to decide whether to grant or deny an interlocutory injunction. [Cit.]" Avnet, Inc. v. Wyle Laboratories,
4. Voters urge that it was error to deny their motion to dismiss Councilmen's claim against them for attorney fees.
The trial court held that Councilmen have no viable claim for injunctive relief against Voters. Councilmen have filed no cross-appeal attacking this holding and, indeed, there would appear to be nothing from which Voters could be enjoined. Voters purport to have completed their recall effort against Councilmen and Superintendent has certified the legal sufficiency of Voters' recall petitions. Under these circumstances, the only future act that could be enjoined would be Superintendent's act of scheduling a recall election in accordance with OCGA
Attorney fees are recoverable in equity cases. Jones v. Spindel,
5. In summary, the trial court correctly granted an interlocutory injunction enjoining Superintendent from scheduling a recall election, but erred in denying Voters' motion to dismiss Councilmen's claim for attorney fees.
Jones, Byington, Durham & Payne, Frank H. Jones, Luther H. Beck, Jr., for George.
Sponsored links
This document cites
- Supreme Court of Georgia - AVNET, INC. et al. v. WYLE LABORATORIES, INC. et al; and vice versa., 263 Ga. 615, 437 S.E.2.d 302
- Supreme Court of Georgia - HOWELL et al. v. TIDWELL et al., 258 Ga. 246, 368 S.E.2.d 311 (1988)
- Supreme Court of Georgia - PARKER v. HAMMOCK et al., 258 Ga. 364, 369 S.E.2.d 481 (1988)
- Supreme Court of Georgia - SPINDEL v. JONES et al., 239 Ga. 68, 235 S.E.2.d 486 (1977)
- Supreme Court of Georgia - COMMITTEE FOR NEW COBB COUNTY REVENUE at al. v. BROWN et al., 228 Ga. 364, 185 S.E.2.d 534
See other documents that cite the same legislation
