Boon v. Mayor of Jackson

Lumpkin, Justice. 1. An action for damages brought by Boon against “The Mayor and Council of the Town of Jackson” resulted in a verdict in his favor, which was afterwards set aside by this court. 93 Ga. 662. At the next trial, the case took an entirely new turn. A motion was then made to dismiss the action on the ground that it was brought as above stated, when it should have been brought against “The Town of Jackson,” that being the corporate name of the munici [491] pality intended to be sued. We find, upon looking at the charter, that in point of fact the words last quoted embrace the correct designation under which the town was incorporated. This being so, was the declaration bad because brought against “The Mayor and Council of the Town of Jackson”? We do not like “to stick in the bark” or enforce mere technical rules in the administration of the law; and were we permitted to decide the question now presented, entirely unembarrassed by any previous adjudications of this court, we would be gravely inclined to-hold that this declaration, if not good upon its face, could be made so by amendment. In certain cases, however, closely resembling the present, this court by its rulings has, we think, decided the principle which we are now undertaking to follow. These decisions were made with reference to that provision of our present constitution which declares that “all suits by or against a county shall be in the name thereof.” In Bennett et ux. v. Walker et al., commissioners, 64 Ga. 326, it was held that in an action for land brought by the county commissioners, who sued officially in their own names, there could be no recovery in behalf of the county. Following this case, it was again held, in Arnett v. The Commissioners of Decatur County, 75 Ga. 782, that an action against the board of county commissioners of that county, naming them, was not a good action against the county, and could not be amended by making the county a party. Both of these cases were adhered to in Hunnicutt et al., commissioners, v. Stone, 85 Ga. 435. If actions against the county commissioners, who were the official representatives of the county, and who- were sued in that capacity, could not be held as actions against the county, it seems to follow inevitably that an action against “The Mayor and Council of the "Town of Jackson” cannot be maintained as a valid suit against the municipality itself, the corporate name of which is “The Town of Jackson,” and the charter of which expressly provides that it shall [492] liave “power in and by said corporate name to . . sue and be sued, plead and be impleaded.” 2. But even if tbe declaration could have been amended so as-to make it an action against tbe town of Jackson, tbe plaintiff in error bas not properly brought to tliis court for review an alleged refusal of tbe trial court to allow just sucli an amendment. Tbe bill of exceptions states tbat tbe court erred “in refusing to allow tbe amendment offered by tbe plaintiff to- bis writ before tbe said case was dismissed.” . It does not inform us wliat tliis amendment contained, but undertakes to bring it to this court by specifying as a part of tbe record to be sent up “tbe application to amend tbe writ by plaintiff, and tbe order refusing said amendment.” Tbe rejected amendment was no- part of tbe record; and in assigning error upon a refusal to- allow it to be made, a copy of tbe same should have been set forth, or at least its substance stated, in tbe bill of exceptions, or attached thereto as an exhibit properly authenticated. We cite two cases precisely in point upon this question of practice: Sibley v. Mutual Ass’n, 87 Ga. 738, and Barnett v. E. T., V. & G. Ry. Co., Ibid. 767. Judgment affirmed.