Title 9

A second injunction may be granted in the discretion of the judge. History. Laws 1842, Cobb’s 1851 Digest, p. 528.; Code 1863, § 3144; Code 1868, § 3156; Code 1873, § 3223; Code 1882, § 3223; Civil Code 1895, § 4921; Civil Code 1910, § 5498; Civil Code 1933, § 55-109.

No appeal as to any ruling or decision in a mandamus or quo warranto proceeding or in a case involving a writ of prohibition may be taken until there has been a final judgment in the trial court. The grant of a new trial shall be treated as a final judgment in these cases and subje…

Boatright, 294 Ga. 253, 751 S.E.2d 851, 2013 Ga. LEXIS 996 (2013). Mandamus properly dismissed where no legal duty imposed on official to issue salary vouchers. — Where no duty was imposed by law upon the Secretary of State to issue vouchers for salary due to members of the State…

Ga. DOT v. Peach Hill Props., Inc., 278 Ga. 198, 599 S.E.2d 167, 2004 Ga. LEXIS 542 (2004). Where board of county commissioners refuses to exercise its discretion to regulate sale of liquors, mandamus is proper remedy to compel the board to act. Thomas v. Ragsdale, 188 Ga. 238, 3…

If any sheriff, clerk, or other officer fails to discharge any duty required of him by any provision of Title 5, upon petition the appellate court or the superior, state, or city court, as the case may be, may compel the performance of such duty by mandamus. No party shall lose a…

A private person may by mandamus enforce the performance by a corporation of a public duty as to matters in which he has a special interest. History. Civil Code 1895, § 4869; Civil Code 1910, § 5442; Code 1933, § 64-103. History of Section. The language of this Code section is de…

Where the question is one of public right and the object is to procure the enforcement of a public duty, no legal or special interest need be shown, but it shall be sufficient that a plaintiff is interested in having the laws executed and the duty in question enforced. History. C…

In order for a plaintiff to enforce a private right by mandamus he must show pecuniary loss for which he cannot be compensated in damages. History. Code 1933, § 64-105. History of Section. The language of this Code section is derived in part from the decisions in At- lantic Ice &…

Mandamus will not be granted when it is manifest that the writ would, for any cause, be nugatory or fruitless, nor will it be granted on a mere suspicion or fear, before a refusal to act or the doing of a wrongful act. History. Orig. Code 1863, § 3132; Code 1868, § 3144; Code 187…

(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 h…

(a) Upon refusal of the court to grant the mandamus nisi, the applicant may appeal as in other cases. Either party dissatisfied with the judgment on the hearing of the answer to the mandamus nisi may likewise appeal. (b) Mandamus cases shall be heard on appeal under the same laws …

The writ of prohibition is the counterpart of mandamus, to restrain subordinate courts and inferior judicial tribunals from exceeding their jurisdiction where no other legal remedy or relief is given. The granting or refusal thereof is governed by the same principles of right, ne…

The writ of prohibition may be granted at any time, on proper showing made. The return must be in term. Any issue of fact made thereon must be tried as in equity cases. History. Code 1863, §§ 3133, 3136; Code 1868, §§ 3145, 3148; Code 1873, §§ 3201, 3209a; Code 1882, §§ 3201, 320…

The writ of prohibition will not lie to the duly inaugurated Governor, but it lies to all other executive or military officers when acting as a judicial or quasi-judicial tribunal. History. Orig. Code 1863, § 3134; Code 1868, § 3146; Code 1873, § 3202; Code 1882, § 3202; Civil Co…

Phillips, 262 Ga. 778, 425 S.E.2d 652, 1993 Ga. LEXIS 293 (1993). Issuance of quo warranto improper. — Trial court erred in granting a citizen a writ of quo warranto revoking county board of equalization (BOE) members’ appointments because although BOE members were public officer…

The question of who is the lawful Governor of this state may not be tried by quo warranto, but the writ of quo warranto will lie to all other civil or military officers. History. Orig. Code 1863, § 3134; Code 1868, § 3146; Ga. L. 1871-72, p. 41, § 1; Code 1873, §§ 3202, 3206; Ga.…

The writ of quo warranto may be granted at any time, on proper showing made. Any issue of fact made thereon must be tried as in equity cases. History. Orig. Code 1863, § 3133; Code 1868, § 3145; Code 1873, § 3201; Code 1882, § 3201; Civil Code 1895, § 4876; Civil Code 1910, § 544…

(a) As used in this Code section, the term “personal service” means service by placing a copy of the writ and process in the quo warranto proceeding in the hands of the defendant. (b) The writ and process in a quo warranto proceeding shall be served on the defendant personally. (…

(a) In all applications for writs of quo warranto, of informations in the nature of quo warranto, or of proceedings by such writs to determine the right to hold office, where the case presented by the applicant involves only questions of law, the same may be determined, as are eq…

In cases where the facts alleged are denied by the defendant or defendants on oath, the judge shall forthwith, in the usual manner, draw a jury of 12 to try the issue of fact, and the judge shall have the power to fix a day for trial of the issue of fact with an order that the she…

Writ lies against civil and military officers; Governor exempt. When granted; how issues of fact tried. Service of writ and process. How issues of law determined; time for final determination; appeal; application to issues of fact. Jury trial where facts at issue; time of trial; c…

The duties heretofore performed by a master in the superior court shall be performed by an auditor. History. Ga. L. 1894, p. 123, § 3; Ga. L. 1895, p. 47, § 1; Civil Code 1895, § 4581; Civil Code 1910, § 5127; Code 1933, § 10-101.

All evidence offered but deemed inadmissible by the auditor shall nevertheless be reported by the auditor; and if, upon exception filed to his ruling thereon, the evidence is adjudged to be admissible, the same may be considered upon the trial of exceptions of fact. History. Ga. L…

Upon filing his report, the auditor shall give both parties or their counsel written notice thereof. History. Ga. L. 1894, p. 123, § 8; Civil Code 1895, § 4588; Civil Code 1910, § 5134; Code 1933, § 10-204.

The report of the auditor shall be prima facie the truth, either party having the liberty to except thereto. History. Ga. L. 1894, p. 123, § 3; Ga. L. 1895, p. 47, § 1; Civil Code 1895, § 4581; Civil Code 1910, § 5127; Code 1933, § 10-101.

When facts referred to auditor; on application and notice; on court’s own motion. Appointment of auditor in matters of account; on application and notice; on court’s own motion. Appointment of person agreed on. Where hearing held; notice of hearing; auditor’s oath. Powers of audi…

(a) Within 20 days after the report is filed and notice is given to the parties, either party may file exceptions to be classified separately as “exceptions of law” and “exceptions of fact.” (b) The trial judge may, in his discretion, on application of any party and without notice t…

(a) Exceptions as to any matter not appearing on the face of the record, in the transcript of the evidence and proceedings, or in the report itself, shall be certified to be true by the auditor within 40 days after the report is filed. If the auditor determines that any such except…

Exceptions of law shall be for the exclusive consideration of the judge. History. Ga. L. 1894, p. 123, § 14; Civil Code 1895, § 4594; Civil Code 1910, § 5140; Code 1933, § 10-401.

In all law cases where an auditor is appointed, exceptions of fact to his report shall be passed upon by the jury as in other issues of fact, and in equity cases by the jury when approved by the judge. The burden of proving error in the report of the auditor shall be upon the par…

In all cases where exceptions of fact are submitted to the jury, the same shall be determined upon the testimony reported by the auditor. Only so much of the evidence as is material and pertinent to the issue then on trial shall be read to the jury. Admissible material evidence i…

(a) No new testimony shall be considered, except in those cases where, according to the principles of law, a new trial would be granted for newly discovered evidence. (b) Application to introduce such original and newly discovered evidence shall be made to the judge before the ar…

Upon application of either party, after notice to the opposite party, the judge of the superior court, in equitable proceedings if the case shall require it, may refer any part of the facts to an auditor to investigate and report the result to the court. Furthermore, the judge ma…

In all cases the jury shall find for or against each exception submitted, seriatim. History. Ga. L. 1894, p. 123, § 20; Civil Code 1895, § 4600; Civil Code 1910, § 5146; Code 1933, § 10-406.

(a) If the auditor’s report is not excepted to, the court shall frame a judgment or decree thereon as may be proper. (b) If exceptions are filed, after the same have been considered and passed upon by the court or the jury, or both, as the case may be, the court shall order a judg…

(a) The fees of an auditor to whom a case, whether legal or equitable, has been referred shall be determined and fixed by the trial judge making the referral or by any other judge having jurisdiction of the case and serving in the place and stead of the trial judge. The fees so de…

(a) The compensation of the court reporter for recording the evidence and proceedings in all cases before an auditor shall be as provided by law for civil cases. (b) The court reporter shall be compensated as provided by law for furnishing transcripts of the evidence and proceedi…

In all cases in the superior, state, or city courts involving matters of account, if the case shall require it, the judge may appoint an auditor to investigate the matters of account and report the result to the court upon the application of either party and after notice to the o…

In all cases where the parties agree upon the person to be appointed as auditor, the court shall appoint such person. History. Ga. L. 1894, p. 123, § 23; Civil Code 1895, § 4603; Civil Code 1910, § 5147; Code 1933, § 10-502.

Except by the written consent of all parties, the auditor shall not hear evidence or argument outside the county in which the case is proceeding. He shall give both parties or their counsel reasonable notice of the time and place of hearing and shall be sworn to render a true rep…

In all cases, unless modified by the order of appointment, in addition to the matter specially referred, the auditor shall have power to hear motions, allow amendments, and pass upon all questions of law and fact. He shall have power to subpoena and swear witnesses and compel the …

In cases of contempt by either party, a witness, or other persons, upon application to the court making the appointment, the judge thereof shall take such proceedings and impose such penalty as the facts authorize or require. History. Ga. L. 1894, p. 123, § 3; Civil Code 1895, § …

After hearing the evidence and argument, the auditor shall file the evidence and a report in which he shall clearly and separately state all rulings made by him, classify and state his findings, and report his conclusions upon the law and facts. History. Ga. L. 1894, p. 123, § 7; C…

The auditor shall make an accurate report of all motions made before him and of his rulings thereon, and either the auditor or a party shall have the evidence and proceedings recorded by a court reporter. Any original document introduced in evidence shall be properly identified an…

When any fund or property is in litigation and the rights of either or both parties cannot otherwise be fully protected or when there is a fund or property having no one to manage it, a receiver of the same may be appointed by the judge of the superior court having jurisdiction t…

The judge of the superior court, in his discretion, may require a receiver to give bond conditioned for the faithful discharge of the trust reposed. If bond is so required, the judge shall fix the amount thereof and shall determine the sufficiency of the security. The judge shall …