
    MEYER & COMPANY v. JORDAN, mayor, et al.
    
    Mandamus will not be granted to compel municipal authorities to levy and collect a tax to pay a judgment alleged to be held by the applicants against the municipality, where it appears that the judgment relied on is not a. valid judgment against it.
    Submitted June 20,
    Decided August 3, 1905.
    Petition for mandamus. Before Judge Reagan. Pike superior court. February 4, 1905.
    
      E. J. Meyer & Company applied for a writ of mandamus against the mayor and council of the Town of Moleña, to compel them to levy and collect a tax sufficient to pay a judgment which the plaintiffs alleged they had obtained against the town. The mandamus was denied, and they excepted. On the hearing ■of the application the record of the suit and judgment on which the plaintiffs relied was introduced in evidence. The petition alleged that Moleña was a municipal corporation chartered under ■the general laws of the State in regard to chartering towns, contained in the Political Code, §§ 774 — 797; that G. W. Bolton was the mayor, W. T. Cockrell the recorder, and A. B. Harris, ■J. A. Carmichael Jr., J. A. Melton, G. M. McDowell, and J. H. Lawrence were the eouncilmen; that the town was due the plaintiffs the sum of $598.50, besides interest, for whiskies, gin, ■etc., purchased from the plaintiffs by the mayor and council; that the mayor, recorder, and eouncilmen of the town purchased all of the articles for the town; and that at the time of the purchase the town was engaged in conducting a dispensary and in buying and selling whisky, gin, and wine for profit. The petition closed as follows: “ That the said mayor, recorder, and ■council of Moleña refuses to pay petitioners; wherefore process is prayed against the Town of Moleña, requiring the defendant to be and appear,” etc. The process which was issued stated the case as that of “ E. J. Meyer & Co. vs. G. W. Bolton, mayor, ct al., of the Town of Moleña,” and stated that “ the defendants, G. W. Bolton, A. B. Harris, J. A. Carmichael Jr., J. A. Melton, Q. M. McDowell, J. H. Lawrence, and W. T. Cockrell, recorder, are required, personally or by attorney, to be and appear,” etc. On the petition was endorsed an .acknowledgment of service, which was signed by “G. W. Bolton, mayor of Moleña, W. T. Cockrell, recorder of Moleña,” and the other persons named in the process as “council of Moleña.” The verdict was for the plaintiffs for the amount sued for. The judgment entered was that the plaintiffs recover of “the defendant, G. W. Bolton, mayor of Moleña, W. T. Cockrell, recorder,” and the other persons named as “eouncilmen of the Town of Moleña.” In the record ■appears a paper which is headed with the word “amendment.” It states the case thus: “E. J. Meyer & Co. vs. The Town of Moleña. Suit in Pike superior court, Oct. term, 1904.” It alleges that “at the time the defendants entered their acknowledgment of service in the above-stated case, it was by them intended to waive everything that was necessary to give the court jurisdiction, and by inadvertence on the part of . . the attorney of record who wrote the acknowledgment of service in said case he wrote the words £ copy process,’ instead of the word £ process.’ ” The petitioners therefore moved the court to allow them to amend the entry of acknowledgment of service accordingly. At the bottom of this paper is written the following entry: “ The foregoing amendment is allowed, this February 2nd, 1905,” signed by the judge of the superior court. There is also in the record another paper above which is written the word “ amendment.” This states the case in which it is made as “E. J. Meyer & Co. vs. The Town of Moleña. Application for mandamus, in Pike superior court, Oct. term, 1904.” It contains the following: “ The plaintiffs in the above-stated case show unto the court the following facts: . . Counsel who represented petitioners in said inadvertence omitted to set out in the judgment therein obtained in their favor against the defendant, the Town of Moleña, that said town was a municipal corporation, chartered under the laws of Georgia, in the name of the Town’of Moleña, although this fact was averred in the petition upon which said judgment was obtained. . . Petitioners move the court to grant an order allowing the movants to amend said judgment by adding therein, and next following the word ‘Moleña’ last mentioned in said judgment, the words, ‘a municipal corporation chartered under the laws of Georgia, in the name of the Town of Moleña,’ so as to make said' judgment conform in all respects to the petition and verdict upon which said judgment was entered up; petitioner moves the court to allow the execution issued upon said judgment to be amended by adding the same words, so the said judgment and execution when so amended will in all respects conform to the petition and verdict upon which they issued.” At the bottom of this paper are written the words: “Bead and considered; the amendment allowed, this February the 2nd, 1905,” signed by the presiding judge.
    
      G. D. Dominick and F. G. Armistead, for plaintiffs.
    
      F. F. Dufrec and B. L. Berner, for defendants.
   Lumpkin, J.

(After seating the foregoing facts.) In the bill, of exceptions the two amendments dated February 2, 1905, are referred to as if they were independent motions to amend the. acknowledgment of service and the judgment. In the record, .however, they appear to have been tendered as amendments to-the petition for mandamus. In one instance, after stating the name of the case, the proposed amendment is headed: “ Suit in Pike superior court, Oct. term, 1904.” In the other it is stated as “application for mandamus, in Pike superior court, Oct. term,. 1904.” Neither of these descriptions is applicable to the suit in which the judgment was obtained, which was instituted in September, 1901. The mere entry of the words “amendment allowed” at the foot of each of these papers, properly construed, means that they were respectively allowed as ameudmeuts to the application for mandamus. Such an entry does not operate to-alter the judgment and change it into a shape entirely different-from tliat in which it was rendered. But if these entries should be construed as orders seeking to amend the acknowledgment of service and the judgment respectively, they would still not have: the effect of making a valid judgment against the municipal corporation. No process was ever issued against the Town of Moleña, but only against certain individuals described respectively as “mayor,” “recorder,” and “counoilmen” of that place. The-acknowledgment of service was similarly signed. The only change sought to be made was by striking the word “copy” before the word “ process,” so as to make a waiver of process. It still remained an acknowledgment of service and waiver of process by the individuals, and not by the municipality. No plea, by the town appears to have been filed. The Town of Moleña,, therefore, has never been brought into court, either by process-directed to it, or by service or acknowledgment of service on its behalf. This being true, there was no lawful verdict against it, and no judgment could be entered against it, nor could any amendment of the judgment which was actually rendered have-that effect. The plaintiffs’ application for mandamus, therefore, had no valid judgment as a basis on which to rest; and, without-regard to the other questions raised, the refusal to make the mandamus absolute was right.

Judgment affirmed.

All the Justices concur, except Simmons,.. C. J., absent.  