Settle v. McWhorter , 203 Ga. 93 ( 1947 )

1. A proceeding for contempt in violation of a mandamus absolute is so connected with the mandamus that a writ of error to review a judgment therein should be treated as a case involving an extraordinary remedy within the constitutional provision conferring jurisdiction upon this court. Ficklen v. Washington, 141 Ga. 441 (81 S.E. 123); Odom v. McDilda, 155 Ga. 688 (117 S.E. 649); Smith v. Lott, 156 Ga. 590 (119 S.E. 400, 30 A.L.R. 145); Tomlin v. Rome Stove Range Co., 183 Ga. 183 (187 S.E. 879); Powell v. Powell, 200 Ga. 379 (37 S.E.2d 191); Wagner v. Commercial Printers, 203 Ga. 1 (45 S.E.2d 205).

2. Under the doctrine of estopped by judgment, a mandamus order requiring the defendants to issue to the plaintiff a permit to operate taxicabs, which on review by this court was affirmed, is conclusive against the defendants in a subsequent proceeding for contempt. Powell v. Powell, 200 Ga. 379 (2), supra.

3. Under the pleadings and evidence, which showed that the defendants refused to issue "a permit to operate taxicabs," but that they by adoption of a resolution limited the plaintiff to the operation of only four taxicabs, the trial court abused its discretion in holding that the defendants had purged themselves of contempt.

Judgment reversed. All the Justices concur, except Wyatt, J., who took no part in the consideration or decision of this case.

NO. 15988. NOVEMBER 14, 1947. This case was previously before this Court. McWhorter v.Settle, 202 Ga. 334 (43 S.E.2d 247). C. H. Settle brought a petition for mandamus against the Mayor and the individual members of the Council of the City of Athens asking that the defendants be required to issue him a permit to operate taxicabs upon the streets of the city. This court affirmed the judgment of the superior court granting a mandamus absolute. While a motion for rehearing, which was subsequently denied, was pending, the defendants repealed the ordinance upon which the mandamus was based, and thereafter filed an equitable petition seeking to have the mandamus declared ineffective because of such repeal. This petition was dismissed on general demurrer, to which ruling there was no exception. No permit having been issued to the plaintiff, he filed an application for a rule nisi requiring the respondents to show cause why they should not be adjudged in contempt for failure to comply with the mandamus absolute. To the rule nisi the defendants filed a response, stating that they had complied with the mandamus by adopting a resolution authorizing the plaintiff to operate four taxicabs. On the contempt hearing counsel for the plaintiff stated that named defendants were not in contempt, since they had voted against limiting the number of taxicabs to be operated. After evidence was introduced, including testimony of the plaintiff that he could not make expenses or compete with other taxicab companies if he was limited to four cabs, the court rendered a judgment ordering the discharge of the above-mentioned defendants. The judgment also provided: "It appearing to the court . . that the other defendants . . [who voted to limit the plaintiff to four cabs] were in contempt after the remittitur was received from the Supreme Court, . . but that they have purged themselves of said contempt by paying the costs in this case and adopting . . a resolution authorizing the plaintiff to operate four taxicabs, . . and that they have complied with the order of this court and are not now in contempt, it is ordered that they be discharged." To this judgment the plaintiff excepted and assigned error thereon as being contrary to law, because it did not require the defendants to give full and unqualified compliance with the mandamus absolute wherein the question as to the defendants' right to limit the number of taxicabs had been conclusively adjudicated at the time the citation for contempt was heard.