
    Carter Electric Co. v. Mayor and Council of Jeffersonville et al.
    
   Russell, C. J.

The Carter Electric Company filed a petition for' mandamus against the Mayor and Council of the City of Jeffersonville and Baker R. Jones, secretary and treasurer thereof, alleging that it was the holder of a judgment rendered in its favor against said city for $517.96 principal, with interest, which the city refused to pay. The City of Jeffersonville in its answer set up that the debt for which the judgment was obtained was based upon a warrant that was illegal, the same not having been issued under the authority of the municipality; that there were already outstanding six mandamuses against the city, none of which had been fully paid; and that an amount sufficient to pay this debt and all other debts for which mandamus had been issued could not be levied without exceeding the limit allowed by the city charter. The court denied a mandamus absolute, reciting in the judgment that the refusal was based upon the theory that there were disputed issues of fact which should be submitted to a jury. Held:

1. The allegation that the warrant upon which the judgment was based was unlawfully issued does not raise an issue of fact, because such defense comes too late. It should have been pleaded in the trial of the suit which resulted in the judgment.

2. None of the allegations of the answer are sufficient to raise an issue of fact, and the court erred in refusing a mandamus absolute. The fact that there were a number of mandamuses outstanding would afford no reason why an additional mandamus should not issue.

Mandamus, 38-C. J. p. 573, n. 98 New; p. 769, n. 49; p. 886, n. 92.

No. 5676.

October 1, 1927.

Petition for mandamus. Before Judge Camp. Twiggs superior court. September 18, 1926.

Martin, Martin & Snow, for plaintiff.

B. A. Harrison and J. D. Shannon, for defendants.

Judgment reversed.

All the Justices concur, except Hill, J., absent.  