
    Ficklen v. Mayor and Council of Washington et al.
    
   Hile, J.

The Mayor and Council of the City of Washington and A. G-. Cozart made application for a writ of mandamus directed to F.. H. Ficklen, alleging that the respondent, former treasurer of the city, refused, after demand duly made, to deliver to said Cozart, the treasurer • of the city elected after the removal of respondent, certain funds belonging to the city, which had come into his hands while treasurer and were still held by him. In response to the application the respondent, .among other defenses, denied that at the time the mandamus nisi was granted on the petition (which was prior to its filing in office) any demand had been made upon him to turn over any funds, or that he had refused to do so. Upon the hearing, in vacation, the judge granted a mandamus absolute, and the respondent excepted. Held:

1. Mandamus absolute should not issue to compel the performance of an act of the character of the one here involved, unless the relator has demanded and the respondent refused to do the act which it is sought to compel (unless there are existing facts making such demand unnecessary) before mandamus nisi is issued against him; where the mandamus nisi is issued prior to the filing of the petition therefor.

2. The answer of respondent denied that there had been any demand on him for the funds in his hands, or refusal by him to turn them over, before the issuance of the mandamus nisi against him; and the pleadings and evidence upon the hearing before the judge showing that this was a disputed question of fact, and not showing conclusively that demand was unnecessary, the judge was without authority, in vacation, to grant a mandamus absolute, the respondent upon such hearing contending that disputed issues of fact were involved and demanding that they be submitted to a jury. Civil Code, §§ 5444, 5445; Sylvania &c. R. Co. v. Hoge, 129 Ga. 734, 740-741 (59 S. E. 806).

February 27, 1914.

Mandamus. Before Judge Walker. Wilkes superior court. May 20, 1913.

Colley & Colley and J. M. Pitner, for plaintiff in error.

William Wynne, W. A. Slaton, and S. II. Sibley, contra.

Judgment reversed.

All the Justices concur.  