Town of Adel v. Woodall

Lamar, J.

(After stating the foregoing facts.) 1. On the hearing of an application for the grant of an interlocutory injunction or for the appointment of a receiver, there is a radical departure from some of the elementary principles relating to the admission of evidence. Affidavits are received. The opposite party is not allowed the right of cross-examination. This emphasizes the necessity of receiving only competent testimony. In the reviewing court, however, the question is whether the chancellor abused *538 Ms discretion in granting or refusing The prayer for extraordinary relief. If the record shows sufficient and competent evidence to support .his finding, or if that excluded would not probably have changed the result, the reviewing court will not pass upon assignments of error relating to the admission or rejection of evidence. ..

2. The petition sought to enjoin the collection of the tax, and also to restrain the city from using the public funds to make a donation. Whether such a bill could be maintained by a resident, or by a taxpayer only, need not be discussed, because it appeared that Woodall made the tax return as trustee. 2 Cooley on Taxation (3d ed.), 1434-7; Blanton v. Merry, 116 Ga. 290 ; Hudson v. Marietta, 64 Ga. 288 . If “trustee” was not to be treated as descriptio person®, he offered a deed showing he was the owner of real estate in the town. This deed was properly admitted. The order requiring each party to submit affidavits to the other did not apply to documentary evidence. And if it did, the answer of the defendant denying that the petitioner was a taxpayer was not filed before the hearing. Until then there was no issue on that point. It was competent then for him to offer the evidence of his ownership of land in the town. There was no claim of surprise, and no request for a continuance. The chancellor did not err in permitting the deed to be introduced.

3. The time between the sanction of the bill and the return of the rule was less than ten days. It was therefore impossible to 'give notice’to produce the length of time usually required. But the defendant made no showing that it was impossible to produce the books, nor was there any motion for a continuance. The books were accessible. The chancellor did not err in requiring them to be produced. Had the defendant refused to comply and stood upon its right to ten days notice, the court would no doubt have granted time. Civil Code, § 5249.

4. An injunction against a corporation is effective to bind its officers and agents, although they be not parties to the record. Neither the agents of the city nor the beneficiary of the proposed illegal donation are necessary parties defendant.

5. The -former proceeding to enjoin the making of a donation was not against the Town of Adel in its corporate capacity, but against those who were its officers. It was dismissed. But the *539 Town of Adel could not rely upon the judgment between different parties as a bar to the present action, nor could it take any advantage of the fact that the plaintiff had not paid the cost in that separate and distinct suit.

6. The agreement to pay the note, whether to the railroad directly or by the way of compensating citizens who had already paid the railroad, was absolutely void. Nor would the fact that the taxpayers unanimously assented to this arrangement make valid what the constitution made void. Nor would it preclude one who subsequently moved into the city from filing a bill to prevent the public money from beiug used for the purposes forbidden by the constitution. Civil Code, § 5891; Covington R. Co., v. Athens, 85 Ga. 367 .

7, 8. Indeed, in view of the evidence properly received and t.he admissions in the answer, the only question before the court was whether there was anything to enjoin. The defendant contended “ that the note referred to in the plaintiff’s petition has been fully paid off and satisfied.” • But it did not claim that the debt had been paid, nor does it negative the possibility insisted upon by the defendant in error, that a renewal note had been substituted for the original. The court properly restrained the town and its officers “ from paying any of the public funds . . upon the note mentioned in the petition, or any renewal thereof, or upon the debt of any private individual, as set forth in the prayer of the petition. ” Judgment affirmed,.

All the Justices concur.