Opinion
19503.
SUBMITTED OCTOBER 8, 1956.
DECIDED OCTOBER 22, 1956.
Petition for injunction. Before Judge Davis. Chattooga Superior Court. August 4, 1956.
Bobby Lee Cook, Maddox Maddox, for plaintiff in error.
Jesse M. Sellers, Jesse M. Sellers, Jr., F. H. Boney, Archibald A. Farrar, contra.
1. "The sworn statement contained in the motion to dismiss, not being denied or otherwise responded to, will be taken as true." Jones v. Jones, 207 Ga. 698 ( 63 S.E.2d 895). The only question and subject matter of the cause having become moot by the actual holding of the election, a reversal of the judgment sustaining the general demurrers to the amended petition would be ineffectual, and the motion to dismiss the writ of error must be sustained. Smith v. Jeffries, 188 Ga. 649 ( 4 S.E.2d 637); Abernathy v. Dorsey, 189 Ga. 72 ( 5 S.E.2d 39); Brockett v. Maxwell, 200 Ga. 38 ( 35 S.E.2d 906); Davison v. City of Summerville, 204 Ga. 748 ( 51 S.E.2d 820); Rentz v. Moody, 204 Ga. 784 ( 51 S.E.2d 838); Cravey v. Bankers Life c. Co., 209 Ga. 273 ( 71 S.E.2d 659); Fountain v. Grant, 211 Ga. 62 ( 84 S.E.2d 61).
Writ of error dismissed. All the Justices concur.
SUBMITTED OCTOBER 8, 1956 — DECIDED OCTOBER 22, 1956.
L. W. Bulman, R. Claude Floyd, Claude Baker, Homer C. Gordon, and Clyde J. Harlow, as the duly qualified members of the Board of Commissioners of Roads and Revenue of Chattooga County, and as citizens and taxpayers, filed a petition against John W. King, ordinary of the county, in which it was alleged that, unless the ordinary be enjoined and restrained from so doing, an election would be held on September 12, 1956, on the question of abolishing the board of commissioners of roads and revenue, pursuant to an act of the General Assembly approved March 6, 1956 (Ga. L. 1956, p. 2899). The prayers of the petition were: for process; that the defendant be temporarily and permanently restrained and enjoined "from advertising said election, from performing any acts incidental to or relating to the furtherance and holding of said election, and from incurring any expense and from holding said election on September 12, 1956, or at any other date"; for rule nisi; and other relief.
The bill of exceptions recites: On July 30, 1956, the defendant ordinary filed his demurrers and answer. On August 3, 1956, H. Ross Thomas and others named filed an intervention praying that they be permitted to file pleadings as parties defendant. On the same date an order was passed allowing the parties to intervene, and on that date they filed their demurrers and answer to the petition. On August 4, 1956, the general demurrers of the intervenors to the petition were sustained. Thereafter, and on the same date, the general demurrers of the defendant ordinary were sustained, to which order and judgment the plaintiffs excepted.
The defendant has filed a verified motion to dismiss the writ of error, wherein it is alleged that the petition was dismissed upon the hearing of the defendant's general demurrers, that no supersedeas was requested or granted, and that the election sought to be enjoined was held on September 12, 1956.
The intervenors have filed a motion to dismiss, to which is attached a certificate of the ordinary to the effect that the election sought to be enjoined was held on September 12, 1956. In this motion it is asserted that the only assignment of error in the bill of exceptions is on the order sustaining the demurrers of the defendant, John W. King, that the general demurrers of the intervenors were sustained, and that there is no exception to this judgment.