O.C.G.A. § 9-6-26 (2019)

Annotations

Law reviews. For note, “The Case of the Vanishing

Supreme Court Contest: Barrow v. Raffensperger Eliminates the Power of the People to Elect their Appellate, Superior, and State Court Judges,” see 72 Mercer L. Rev. 957 (2021).

JUDICIAL DECISIONS Mandamus lies against officer to require performance of clear legal right. Harmon v. James, 200 Ga. 742, 38 S.E.2d 401, 1946 Ga. LEXIS 322 (1946). Writ, if granted, should be effectual as a remedy, and, if the status would not be changed, a wise judicial discretion would justify its refusal. The court will refuse this extraordinary remedy when it will prove unavailing, and when no result will be accomplished, or the status changed, by its issuance. Harmon v. James, 200 Ga. 742, 38 S.E.2d 401, 1946 Ga. LEXIS 322 (1946). Mandamus should not issue when this remedy would be ineffectual to change the status of the parties, or afford any material advantage to the applicant, respecting the thing demanded. Smith v. Hodgson, 129 Ga. 494, 59 S.E. 272, 1907 Ga. LEXIS 492 (1907). Plaintiff must show that mandamus will be effective. - In order to authorize the grant of a mandamus absolute, plaintiff must show a clear legal right and that the mandamus will be effective. Troutman v. Aiken, 213 Ga. 55, 96 S.E.2d 585, 1957 Ga. LEXIS 299 (1957). Proper remedy should be resorted to in lieu of mandamus. - Where it

appears that the applicant had a remedy for any error of the judge of the probate court, the applicant cannot neglect the remedy and afterwards resort to mandamus proceedings. Sharp v. McAlpin, 162 Ga. 159, 132 S.E. 891, 1926 Ga. LEXIS 129 (1926). Before mandamus will issue, law must not only authorize act to be done, but must require its performance, and to entitle one to the writ of mandamus, it must appear that one has a clear legal right to have performed the particular act which one seeks to have enforced. Harmon v. James, 200 Ga. 742, 38 S.E.2d 401, 1946 Ga. LEXIS 322 (1946). Mandamus will not be allowed unless act commanded to be done is legally possible before the writ issues. Kirkland v. Lowry, 175 Ga. 240, 165 S.E. 111, 1932 Ga. LEXIS 226 (1932). Mandamus properly denied where official duty could no longer be performed. - Where, at the time an application for mandamus was heard, the time had passed within which the official duty, the performance of which was sought to be compelled, could be performed, the court

properly denied a mandamus. Kirkland v. Lowry, 175 Ga. 240, 165 S.E. 111, 1932 Ga. LEXIS 226 (1932); Skrine v. Kim, 242 Ga. 185, 249 S.E.2d 534, 1978 Ga. LEXIS 1134 (1978). Denial of mandamus relief improper. - Trial court erred in denying the children’s petition for writ of mandamus to compel a judge to allow the children to appeal from the order dismissing their appeals because the children showed that the children had a clear legal right to file a direct appeal from the order dismissing their properly filed direct appeals and that granting mandamus relief would not be nugatory since the notices of appeal were proper and valid. Sotter v. Stephens, 291 Ga. 79, 727 S.E.2d 484, 2012 Ga. LEXIS 450 (2012). Void unreversed judgment does not create legal impossibility. - When the petition for mandamus shows that the act the performance of which is sought is legally impossible because of an unreversed judgment of a court, and the allegations of the petition are sufficient to show the judgment to be void because it was rendered by a court which was without jurisdiction, the application for mandamus will not fail to state a cause of action because the judgment has not been successfully attacked and declared void prior to the filing of the petition for mandamus. To rule otherwise would be to require a needless multiplicity of suits in order to reach the same result. Riley v. Garrett, 219 Ga. 345, 133 S.E.2d 367, 1963 Ga. LEXIS 454 (1963). Mandamus proceedings do not relate back to time of accrual of right thereto, and the duty to be enforced must be a duty which exists at the time when the application for mandamus is made or the writ is granted. Skrine v. Kim, 242 Ga. 185, 249 S.E.2d 534, 1978 Ga. LEXIS 1134 (1978). Mandamus is not proper remedy to compel undoing of acts already done or the correction of wrongs already perpetrated. Coastal Serv., Inc. v. Jackson, 223 Ga. 238, 154 S.E.2d 365, 1967 Ga. LEXIS 476 (1967). When time has passed for discharge of official duty sought to be compelled, mandamus will be denied.

Skrine v. Kim, 242 Ga. 185, 249 S.E.2d 534, 1978 Ga. LEXIS 1134 (1978). Act beyond power of officer. - It is not error to refuse to grant a mandamus to require the clerk of the superior court to deliver certain ballots and voter’s lists to named persons, when it affirmatively appears that these ballots and lists are not in the clerk’s possession, or to compel a reconsolidation of votes where results of an election would not be changed. Gilliam v. Green, 122 Ga. 322, 50 S.E. 137, 1905 Ga. LEXIS 199 (1905). The state treasurer is authorized to pay out funds of the state in the treasurer’s hands only upon warrants signed by the Governor and countersigned by the Comptroller General; and a petition seeking a writ of mandamus directing the state treasurer to honor and pay, when and if presented, a warrant which the petition failed to show had been executed as required by law, so that there was no failure of the treasurer to perform the treasurer’s official duty in paying a warrant properly executed and presented to the treasurer, alleged no cause of action, and was properly dismissed on demurrer (now motion to dismiss). Barwick v. Roberts, 188 Ga. 655, 4 S.E.2d 664, 1939 Ga. LEXIS 614 (1939). Where the secretary and treasurer of a town brought mandamus against the tax receiver of a county to permit the secretary and treasurer to examine the county tax returns of taxpayers who own property in the town to ascertain whether such taxpayers were making proper returns to the town for ad valorem tax purposes, the allegations in the petition affirmatively showed that the tax returns in question were not in the defendant tax receiver’s possession when the petition requested permission to examine them, and there was no allegation that they were in the receiver’s custody and control when litigation was instituted; hence, it failed to state a cause of action for the relief sought. Sauls v. Winters, 215 Ga. 515, 111 S.E.2d 41, 1959 Ga. LEXIS 527 (1959). Act fruitless or nugatory. - If it should appear that an applicant to commissioners to transplant oysters in a certain county has no land in the county upon which it could be done and there is no

territory to which it could apply, there is no error in refusing a mandamus. Commissioners of McIntosh County v. Aiken Canning Co., 123 Ga. 647, 51 S.E. 585, 1905 Ga. LEXIS 567 (1905). Untimely seeking of mandamus. - Suit by county to recover money illegally paid out of its treasury must be brought

within four years, and where the petition for mandamus to force commissioners to bring suit for such recovery is brought six years afterwards, under the terms of this section, the mandamus should not issue. Swords v. Walker, 141 Ga. 450, 81 S.E. 235, 1914 Ga. LEXIS 3 (1914) (see O.C.G.A. § 9-6-26).

OPINIONS OF THE ATTORNEY GENERAL Public official will be excused from carrying out official duty upon failure of General Assembly to appropriate funds for performance, if, but only if, the official is able to show that the resulting lack of funds, together with an inability to obtain the same, make performance impossible; failure of the General Assembly to appropriate moneys for a specific official duty might not justify a failure to perform where the official has received a general appropriation and could divert a portion thereof to carry out

the official’s statutory or official duty. 1969 Op. Att’y Gen. No. 69-174. An interdepartmental council created by an Act of the General Assembly is excused from carrying out its official duties upon failure of the General Assembly to appropriate funds for performance of said duties, if, but only if, this resulting lack of funds rendered performance impossible; the court would have the power to determine whether the mandatory duties of the council could be performed or not. 1969 Op. Att’y Gen. No. 69-184.

RESEARCH REFERENCES Am. Jur. 2d. 52 Am. Jur. 2d, Mandamus, § 20.

C.J.S. 55 C.J.S., Mandamus, § 11.