
    Jett v. Jones et al., trustees.
    No. 13197.
    May 23, 1940.
    
      Fraser, Irwin •& Latimer, for plaintiff.
    
      J. G. Savage, G. S. Winn, J. G. Murphy, and F. L. Sterne, for defendants.
   Bell, Justice.

The widow of a police officer of. the City of Atlanta filed a suit against the Trustees of the Police Officers? Pension Eund, seeking the writ of mandamus to require payment of a, monthly sum alleged to be due to the plaintiff as a pensioner under an act of the General Assembly of 1925 (Ga. L. 1925, pp. 228-234). The defendants filed an answer denying the plaintiff’s right to the relief, on various grounds. At the conclusion of the evidence the court directed a verdict in favor ' of the defendants, and the plaintiff excepted. Held:

(а) It appearing from the evidence, without dispute, that for the period covered by the suit the plaintiff received under a subsequent statute (Ga. L. 1933, p. 213) more from the pension fund than the defendants could lawfully have paid to her under the act of 1925, the'court did not err in directing the verdict in favor of the defendants. On principle the case is controlled adversely to the plaintiff by the decision of this court in Hollis v. Jones, 187 Ga. 14 (199 S. E. 203).

(б) The foregoing conclusion is not altered by the fact that an actuary testified that the net balance in the hands of the defendants at the end of each year after the passage of the act of 1933 included the balance carried forward from the fund as it existed under the act of 1925. This statement of the witness clearly related only to the matter of bookkeeping through a period of years, and did not tend to rebut the testimony of the secretary of the board of trustees, based upon a statement of facts given by him, to the effect that the plaintiff “has now received under the new act more than twice as much as she would have received ■ under the old act, if she had. elected to come under it rather than to come under the new act.”

(c) Since the judgment must be affirmed for the reason indicated, no ruling is necessary as to whether the plaintiff should be held concluded by an election to claim under the act of 1933, or as to whether any other ground of defense was established by the evidence.

Judgment affirmed.

All the Justices concur.  