The Marietta journal. [volume] (Marietta, Ga.) 1866-1909, 1901-12-26
THE SHORTAGE SUIT
.. IN COURT,
Judge Lumpkin, of Attain
Ia, Heard the Demur.
er and Argument.

Judge ]. H Lumpkin, of the Superior
court, in chambers yesterday afternoon,
heard feature of one of the most inn
portant and interesting cases that has
ever been before the courts of Cobb
county. The hearing was before Judge
Lumpkin, as Judge George F. Gober, Of
the Cobb superior court, is disqualified
The argument was on demurrer to
one of four suits that have been insti-
tuted in Cobb county by Mayor T. NJ. .
Brumby, of Marietta, against R. f.
Lawhon, clerk of the city council, and
the securities on his bond, as follows:
Joseph Paige, Geo. S. Owen, A. Y.
Leake, S. A. Anderson and T. NJ. Brum-
by. Mayor Brumby is one of the num-
Der standing security and unique fea-
ture of the case is that he is suing him
self.
The suits were brought as the result
of the alleged defnlcation of Clerk Law
hon. He is charged with being short
"a ,5O0, and the alleged shortage is said
to have covered period of eight years.
Under the law it was his duty to collect
taxes and pay the amount devoted to
education to the treasurer of the board
of education. 1t is claimed that the
shortage was in the education fund.
The clerk denies the alleged defalca-
ton, claiming he turned over the money
to the treasurer, but lost his receipt.
Lawhon, who is one-legged confed-
crate veteran, was under 5000 bond
to secure his faithful performance of
duty. 1t was in reference to the bond
that the legal fight was made yester-
day afternoon before Judge Lumpkin
1t is stated that the bond was made in
favor of T. M. Brumby mayor, and the
securities contend that it is void, on
the ground that the-law prescribes that
| it should be made infavor of the mayor
and council
After the alleged shortage was dis
covered Mayor Brumby entered four
suits against the securities, of which
he is one. Four suits were filed, as
there were four bonds, covering pc
riod of two years each. These suits
were brought at the November term of
court and the securities then filed de-
murrer, in an effort to throw them out
of court. Judge Gober is president Of
the board Of education and is, there
fore, disqualified.
| All of the attorneys participating in
the hearing are from Marietta. The
city was represented by Attorneys D.
w. Blair and ] E. Motley Clerk Law
hon was represented by Attorney r. N.
Holland, and the securities were repre-
scented by Attorneys Sessions & Moss.
Judge Lumpkin will probably render
his decision today. 1t is stated that
the three remaining cases will be gov
erned by the result of the demurrer
heard yesterday Atlanta Constitution
December 10th.
The Judge overruled all the demur-
rers on all the points, with the excep-
ton of a special demurrer in one case.
He held the bonds were good that the
suits were properly brought, and said
that he did not we'll see how they could
have been brought otherwise. In one
case Mayor Brumby was also defend
ant, being one of the bondsmen, and
on a special demurrer filed on that
point the judge ruled that Mayor
Brumby could not sue himself and sus-
tanned this special demurrer. This de-
cision does not affect the merits of the
case, but results in little delay only,
as a new mayor will be installed within
a few weeks and the suit will be re-
neved in MS name. We understand
that the counsel for the plaintiff will
take this course rather than take Judge
Lumpkin's dscision to the supreme
court. We think it proper to say that
Mayor Brumby was not defending the
case against himself, but sometime ago
offered to pay his half of the bone, if he
could be released, but this could not be
done without also releasing the other
bondsman, Mr.. Paige.