O.C.G.A.
O.C.G.A.

O.C.G.A. § 9-6-27 (2019)

Time of hearing; notice; how and when issues of fact determined

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)
Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.
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Statute text

(a) Upon the presentation of an application for mandamus, if the mandamus nisi is granted the judge shall cause the same to be returned for trial not less than ten nor more than 30 days from such date. The defendant shall be served at least five days before the time fixed for the hearing.

(b) If no issue of fact is raised by the application and answer, the case shall be heard and determined by the court without the intervention of a jury.

(c) If an issue of fact is involved, it may be heard by the judge upon the consent of all parties. Otherwise, the case shall be set for trial upon the first day of the next term of the superior court as other jury cases are tried. However, if the court has a scheduled session for jury trials which will occur before the next term, the case shall stand for trial at the present term.

History

(Ga. L. 1882-83, p. 103, §§ 1, 2, 4; Civil Code 1895, §§ 4871, 4872, 4873; Civil Code 1910, §§ 5444, 5445, 5446; Code 1933, §§ 64-107, 64-108, 64-109.)

Annotations

JUDICIAL DECISIONS

Section intended to facilitate swift disposition. - Under law relating to mandamus, appearance and trial terms are abolished and a speedy decision upon the merits is intended and if the case involves no issue of fact, it may be heard and determined by the court; but if an issue of fact is made, it shall be in order for trial upon the first day of the next term of the superior court, as other jury cases are tried; and if the superior court is in session, or taking a recess at time fixed for trial in mandamus nisi, the same shall stand for trial at then present term. Bridges v. Poole, 176 Ga. 500, 168 S.E. 577 (1933).

Trial without jury where no issue of fact. - This section, in effect, provides that the judge may without a jury determine an application for mandamus when the answer to the mandamus nisi shall involve no issue of fact, but that if an issue of fact be involved the issue shall be tried before a jury. Chappell v. Small, 194 Ga. 143, 20 S.E.2d 916 (1942) (see O.C.G.A. § 9-6-27).

If issue of fact is involved in mandamus case, such issue shall be tried by jury. City of Atlanta v. McLennan, 240 Ga. 407, 240 S.E.2d 881 (1977).

Parties to mandamus action may waive their right to jury trial either tacitly or expressly. City of Atlanta v. McLennan, 240 Ga. 407, 240 S.E.2d 881 (1977).

Objection to evidence as presenting issue for jury without merit where parties consented to hearing in accordance with this section. City of Camilla v. Norris, 134 Ga. 351, 67 S.E. 940 (1910) (see O.C.G.A. § 9-6-27).

By introducing evidence without objection that case was for jury, party is presumed to consent to the trial of any issues of fact by judge. Talmadge v. Cordell, 170 Ga. 13, 152 S.E. 91 (1930).

Waiver of jury trial at first trial of civil case applies to retrials of the same case. City of Atlanta v. McLennan, 240 Ga. 407, 240 S.E.2d 881 (1977).

Jury trial required where county board of education refused to confirm election of applicants as trustees of school district, where issue arose as to whether members or former board contracted for indebtedness of the school district. Bryant v. Board of Educ., 156 Ga. 688, 119 S.E. 601 (1923).

Ga. L. 1972, p. 689, §§ 1-3 (see O.C.G.A. § 9-11-4) plainly permits ordinary service of process to be used in mandamus cases as an alternative to issuing mandamus nisi under former Code 1933, §§ 64-107, 64-108, and 64-109 (see O.C.G.A. § 9-6-27). DeKalb County v. Chapel Hill, Inc., 232 Ga. 238, 205 S.E.2d 864 (1974).

O.C.G.A. § 9-6-27(a) complemented rather than conflicted with O.C.G.A. § 9-11-4(k), which expressly established that the methods of service could have been used as alternative methods of service in special statutory proceedings; a taxpayer's failure to comply with O.C.G.A. § 9-6-27(a) in a case seeking mandamus and injunctive relief against a county was immaterial, because the taxpayer served the county in the ordinary manner. Haugen v. Henry County, 277 Ga. 743, 594 S.E.2d 324, cert. denied, 543 U.S. 816, 125 S. Ct. 63, 160 L. Ed. 2d 22 (2004).

Proper notice of hearing. - In an action by a city to, inter alia, compel a county tax commissioner to pay school tax receipts, a trial court erred in converting a hearing on an interlocutory injunction into a final hearing on a permanent injunction and a writ of mandamus without the proper notice under O.C.G.A. § 9-6-27(a); the commissioner was only given two days' notice and also did not consent to having any mandamus issue heard by the trial court without a jury under § 9-6-27(c) or to having the request for permanent injunctive relief under O.C.G.A. § 9-11-65(a)(2) heard at the same time. Ferdinand v. City of Atlanta, 285 Ga. 121, 674 S.E.2d 309 (2009).

When no hearing required. - A litigant was not entitled to a hearing on a petition for a writ of mandamus against a judge in a defamation action against the litigant under O.C.G.A. § 9-6-27(a) because no mandamus nisi issued, and neither the litigant nor the judge requested oral argument under Ga. Unif. Super. Ct. R. 6.3. Watson v. Matthews, 286 Ga. 784, 692 S.E.2d 338 (2010).

Trial court did not err in denying the plaintiff's request for a mandamus nisi without first holding a hearing as the mandamus statute clearly authorizes the trial court to deny a request if the petition is meritless. Hansen v. DeKalb County Board of Tax Assessors, 295 Ga. 385, 761 S.E.2d 35 (2014).

Dismissal of mandamus petition proper. - O.C.G.A. § 50-18-73(a) of the Georgia Open Records Act, O.C.G.A. § 50-18-70 et seq., provides a remedy that is as complete and convenient as mandamus; thus, the trial court did not err in dismissing the individuals' petition for mandamus under O.C.G.A. § 9-6-27(b). Tobin v. Cobb County Bd. of Educ., 278 Ga. 663, 604 S.E.2d 161 (2004).

Cited in Dennington v. Mayor of Roberta, 130 Ga. 494, 61 S.E. 20 (1908); Tarver v. Mayor of Dalton, 134 Ga. 462, 67 S.E. 929 (1910); City of Blakely v. Singletary, 138 Ga. 632, 75 S.E. 1054 (1912); Ficklen v. Mayor of Wash., 141 Ga. 441, 81 S.E. 123 (1914); Mayor of Jeffersonville v. Taylor Iron Works & Supply Co., 154 Ga. 434, 114 S.E. 579 (1922); Browne v. Benson, 163 Ga. 707, 137 S.E. 626 (1927); Claxton State Bank v. R.S. Armstrong & Bro. Co., 185 Ga. 487, 195 S.E. 418 (1938); Powell v. Georgia Pub. Serv. Comm'n, 186 Ga. 420, 197 S.E. 792 (1938); Bradley v. Shelton, 189 Ga. 696, 7 S.E.2d 261 (1940); Ex parte Ross, 197 Ga. 257, 28 S.E.2d 925 (1944); South View Cem. Ass'n v. Hailey, 199 Ga. 478, 34 S.E.2d 863 (1945); Holt v. Clairmont Dev. Co., 222 Ga. 598, 151 S.E.2d 151 (1966); Vargas v. Morris, 266 Ga. 141, 465 S.E.2d 275 (1996).

RESEARCH REFERENCES

Am. Jur. 2d. - 52 Am. Jur. 2d, Mandamus, §§ 438, 441.

C.J.S. - 55 C.J.S., Mandamus, §§ 319, 332.

ALR. - Summary judgment in mandamus or prohibition cases, 3 A.L.R.3d 675.

Notes of Decisions
Cited in 14 cases (1 in the last 5 years), 1995–2021 · leading case: Haugen v. Henry Cnty., 594 S.E.2d 324 (Ga. 2004).
Sort: Relevance Newest Treatment
Haugen v. Henry Cnty., 594 S.E.2d 324 (Ga. 2004). · cites it 20× “2d 780 (1995) (using OCGA § 9-6-27 as the alternative to OCGA § 9-11-4).”
In Re Inquiry Concerning a Judge No. 94-70, 454 S.E.2d 780 (Ga. 1995). · cites it 4× “IV, nor was the required notice given or hearing held, OCGA § 9-6-27. O'Neal would have certainly been authorized to file a petition for mandamus in the superior court, but she was not authorized to issue an order requiring the performance of an official duty.”
Bd. of Com'rs of Dougherty Cnty. v. Saba, 598 S.E.2d 437 (Ga. 2004). · cites it 2× “4 On remand, the trial court is reminded of the statutory right to a jury trial in a mandamus action should a question of fact be raised by the application and answer, and the statutory timing requirement for such a trial provided in OCGA § 9-6-27. 5 Ga. L. 1974, p. 702, § 3.”
Hamilton v. Telfair Cnty. Sch. Dist., 455 S.E.2d 23 (Ga. 1995). · cites it 4× “After holding an evidentiary hearing on the mandamus petition pursuant to OCGA § 9-6-27, the trial court denied the petition, concluding that appellant had failed to establish that the reassignment had caused her to suffer a decrease in salary or a diminishment of responsibility.”
Vargas v. Morris, 465 S.E.2d 275 (Ga. 1996). · cites it 2× “While OCGA § 9-6-27 (c) provides for a jury trial in a mandamus action where an issue of fact is involved, appellant was not entitled to a jury trial on his petition for mandamus since only a legal issue was presented for decision.”
Tobin v. Cobb Cnty. Bd. of Educ., 604 S.E.2d 161 (Ga. 2004). · cites it 2× “Relying upon OCGA § 9-6-27 (b), petitioners assert that, inasmuch as the court issued a mandamus nisi, it was bound to issue a mandamus absolute since defendants did not file an answer.”
Ferdinand v. City of Atlanta, 674 S.E.2d 309 (Ga. 2009). · cites it 4× “The defendant shall be served at least five days before the time fixed for the hearing. No such service appears in the record, and Ferdinand received notice of the hearing on the request for an interlocutory injunction two days before the hearing.”
Hansen v. Dekalb Cnty. Bd. of Tax Assessors, 761 S.E.2d 35 (Ga. 2014). · cites it 2× “See OCGA § 9-6-27 (a) (providing for hearing only “¿/the mandamus nisi is granted” (emphasis supplied)); Kappelmeier v.”
Goldman v. Johnson, 772 S.E.2d 704 (Ga. 2015). · cites it 2× “But OCGA § 9-6-27 (b) plainly provides that, if a petition for a writ of mandamus does not require the resolution of any issues of fact, the petition “shall be heard and determined by the court without the intervention of a jury.”
Watson v. Matthews, 692 S.E.2d 338 (Ga. 2010). · cites it 4× “” 2 All judges in the Rome Judicial Circuit recused themselves from presiding over the case, and a superior court judge from another circuit was appointed to preside over it. Judge Matthews moved to dismiss the action; the motion to dismiss was granted without a hearing, and…”
Sherri J. Nance v. Houston Cnty. Sch. Dist. (Ga. Ct. App. 2021). · cites it 4× “2 The trial court’s order 2 Where a mandamus petition involves issues of fact, OCGA § 9-6-27 (c) provides that the case “may be heard by the judge upon the consent of all parties. Otherwise, the case shall be set for trial upon the first day of the next term of the 3 stated…”
John Joseph Hildebrand, III v. City of Warner Robins (Ga. Ct. App. 2020). · cites it 2× “Whereas, here, the trial court heard and ruled on the defendant’s motion to dismiss alone, rather than issuing a mandamus nisi to try the merits of the claim pursuant to OCGA § 9-6-27. 6 The dismissal of the City does not otherwise bar Hildebrand’s mandamus claim because…”
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— 9-6-27(a) — 1 case
Haugen v. Henry Cnty., 594 S.E.2d 324 (Ga. 2004). “2d 780 (1995) (using OCGA § 9-6-27 as the alternative to OCGA § 9-11-4).”
Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.