Plaintiffs, citizens of Bartow County, participated in a recall effort against County Commissioner Frank Moore. OCGA Ch. 21-4. When they submitted their petition to the Probate Judge, Norma Tidwell, for verification of the signatures, she disqualified 1950 of them. OCGA 21-4-7
. As a result, the total number of verified signatures fell below the number necessary to require a recall election, and the plaintiffs filed this mandamus action to force the probate judge to verify the signatures properly. 1
. The trial court dismissed the plaintiffs' petition for failure to state a claim. They appeal.
Judge Tidwell argues that the trial court properly dismissed the plaintiffs' petition because it was brought under OCGA 21-2-521
, a section on contesting results of primaries or elections. The plaintiffs contend that while they may have cited an inappropriate Code section, 2
the petition clearly states a claim under the Civil Practice Act. OCGA 9-11-8
. See Dillingham v. Doctors Clinic, P. A., 236 Ga. 302 (223 SE2d 625) (1976)
We agree with plaintiffs that, notwithstanding the reference to OCGA 21-2-521
, and the inclusion of prayers for equitable relief, the complaint states a claim under OCGA 21-4-17
and its dismissal was error. Cochran v. McCollum, 233 Ga. 104 (210 SE2d 13) (1974)
David N. Vaughan, Jr., Velma C. Tilley, Davis & White, Jefferson L. David, Jr., for appellee.