Darby v. Mayor &C. of Statesboro

208 Ga. 705 (1952)

69 S.E.2d 248

DARBY et al. v. MAYOR &c. OF STATESBORO.

17696.

Supreme Court of Georgia.

Submitted January 14, 1952.

Decided February 13, 1952.

Wm. J. Neville, W. G. Neville and J. P. Dukes, for plaintiffs.

Geo. M. Johnston, for defendants.

HEAD, Justice.

F. W. Darby and wife filed an action against the "Mayor and Councilmen of the City of Statesboro," and process was issued against the "Mayor and Council of the City of Statesboro." A judgment by default was rendered against the defendant, and on the day following, a motion was duly filed to vacate and set aside the judgment. After notice and a hearing, the motion was sustained and the petition of the plaintiffs dismissed. The order of the trial judge in sustaining the motion recited in part that no valid service of process had been made upon the City of Statesboro, and that there had been no waiver by appearance or pleadings prior to the default judgment. The exception is to the order vacating and setting aside the default judgment, and dismissing the petition. Held:

1. A municipal corporation can be sued only in the corporate name set forth in its charter. Town of East Rome v. City of Rome, 129 Ga. 290 (58 S. E. 854), and cases cited.

2. The act approved August 17, 1912 (Ga. L. 1912, pp. 1331-1374), creating a new charter for the City of Statesboro, in section 2 provides that the "Mayor and City Council of Statesboro" are constituted a body corporate with the power and authority to sue and be sued. An action against the "Mayor and Councilmen of the City of Statesboro" is a mere nullity, and is not amendable. Town of East Rome v. City of Rome, supra. It follows that the judge of the superior court did not abuse his discretion in vacating the default judgment and in dismissing the petition.

Judgment affirmed. All the Justices concur.