Sterling v. Mayor of St. Marys

Atkinson, J. 1. On April 5th, 1910, twelve plaintiffs united in one action to enjoin the sale of their respective properties under executions issued against each of them individually for taxes for the year 1909 by the Mayor and Aldermen of the City of St. Marys, and obtained a restraining order. One of the plaintiffs died about July 1st, 1910, and there was no representation upon his estate. The case was set for hearing in a different county on November lltli, 1910. On the 10th of •November, and also prior thereto (the date not being disclosed by the record), the plaintiffs’ counsel had applied to the clerk of the Mayor and Aldermen of the City of St. Marys for a certificate relative to certain matters which he desired to introduce in evidence, but which on both occasions the clerk refused to give. Held: (a) The plaintiff who had died was not a necessary party to the suit of the remaining plaintiffs, and his death- furnished them no ground upon which to continue the case. (6) Even if the certificate of the clerk would have been admissible, the plaintiff showed no such diligence as would have required the judge to postpone the case. 2. A statement of the clerk of a municipal council, made to a person who inquired of him as to the existence of a municipal ordinance, that no such ordinance appeared upon the record in his office, and that he had never seen any such ordinance, and knew nothing of its existence, is mere hearsay and not admissible in evidence to prove the non-existence of such an ordinance, in a suit against the municipality to enjoin the collection of a tax. See Griffin v. Wise, 115 Ga. 610 (41 S. E. 1003), and citations; Youmans v. Ferguson, 122 Ga. 331 (50 S. E. 141), and citations. (a) Such a statement can not be introduced in an action of the character mentioned, on the theory that it was the declaration of an agent made dum fervet opus. 3. Even if the municipality of St. Marys did not have the power to assess and collect taxes for general purposes of the municipality under its original charter and various amendments thereto, such power was expressly given under section twelve of an amendment to its charter passed in 1908 (Acts 1908, p. 911). 4. Under the evidence submitted by the plaintiffs, and that introduced by the defendants without objection, there was no abuse of discretion in refusing to grant an ad interim injunction. Judgment affirmed. All the Justices concur, except Hill, J., not presiding.