Roger Touchton, d/b/a Hoagies, applied to the City of Homerville City for a beer and wine license, which the City Council denied. Touchton then brought suit, seeking mandamus to compel issuance of the license. His original complaint named the City as the only defendant. In May 2006, while the mandamus action was pending, the City Council revoked the existing alcohol ordinance, which had been in effect since 1978, and adopted a replacement. The City Council then rescinded its previous denial of Touchton’s application, and agreed to reconsider it. At that point, Touchton, without leave of court, amended his mandamus petition to name the mayor and individual members of the City Council as additional defendants, and the City Attorney acknowledged service for each of them. On reconsideration, the City Council once again denied the application. The trial court conducted a hearing, after which it granted mandamus and ordered the issuance of the alcohol license. The City, mayor and members of the City Council Appellants appeal from that ruling pursuant to this Court’s grant of a discretionary appeal. 1. The City moved to dismiss the original petition on the ground that mandamus will not lie against it, since the writ can be directed only at a public officer. Thereafter, Touchton amended the petition to add the mayor and Council members, and the trial court did not ever rule on the motion to dismiss. On appeal, Appellants contend that, since Touchton failed to make a motion to add parties, and there was not any order adding them, the City Council members were not properly before the trial court.
The City is not a proper party to this mandamus action. Crow v. McCallum , 215 Ga. 692, 693 1 113 SE2d 203 1960; Bulloch County v. Ritzert , 213 Ga. 818 102 SE2d 40 1958. Although a pre-trial order had not yet been entered, Touchton still could not add the mayor and City Council members as defendants by amendment without leave of court. Clover Realty Co. v. Todd , 237 Ga. 821, 822 229 SE2d 649 1976; Slater v. Brigadier Homes , 198 Ga. App. 67 400 SE2d 338 1990. Thus, his petition, even after the unauthorized amendment, did not properly “allege a cause of action, since it was brought against the City and not the proper officials required by law to perform the specified act.” Bulloch County v. Ritzert , supra at 819 2.
