Wheeler County v. McRae

MacIntyre, J. Where by an act of the legislature a sole-commissioner form of government was created for Wheeler County (Ga. R. 1924, p. 378), giving to the sole county commissioner full control over the fiscal affairs of the county and transferring to him all of the powers theretofore exercised by the ordinary while sitting for county purposes, the ordinary has no authority thereafter to prosecute a suit in the name of the county on the bond given by the sole commissioner as agent or as an individual. See Smith v. Fuller, 135 Ga. 271, 277 (69 S. E. 177, Ann. Cas. 1912A, 70); Henry v. Means, 137 Ga. 153 (3) (72 S. E. 1021); Cook v. Board of Commissioners, 54 Ga. 163; Bennett v. Walker, 64 Ga. 326. Therefore, since the petition in the present case, as finally amended, presents a suit brought solely in the name of the county as plaintiff, and alleges that it is being prosecuted by the ordinary as agent of the county or obligee in the bond given by the sole commissioner, and the ordinary is not a party suing for the use of the county the suit was properly dismissed by the trial judge. However, since the act creating a sole-commissioner form of government for Wheeler County provides that the bond given by the sole commissioner shall be made payable to the ordinary, “which said bond may be sued upon in the [848] name of said ordinary, either on his own motion or by direction of the grand jury of said county,” and since the county is the real party at interest (the suit being upon the bond of the sole commissioner for withholding county funds) and is before the court, and since an amendment adding the name of the ordinary suing for the use of the county will be only the addition of a nominal party, and not a new party, we direct that if an amendment is offered, in accordance with the above ruling, when the remittitur from this court is made the judgment of the trial court, the judge allow the same. The amendment shall be subject to demurrer as in other cases; otherwise the case stands dismissed. Decided September 4, 1935. Adhered to on rehearing, October 4, 1935. E. W. Nalley, for plaintiff. O. L. Eallaway, W. 8. Mann, W. 8. Mann Jr., for defendant. Judgment affirmed, mth direotion. Broyles, O. J., and Guerry, J., coneur.