50 Ga. App. 219 | Ga. Ct. App. | 1934
1. Where an execution issued in favor of the City of LaG-range against a named person generally, as the owner of certain city lots, and specially against the lots, by virtue of an unpaid paving assessment, and before the assessment was made the defendant in fi. fa. had parted with the title to two of the lots, the defendant in fi. fa. could properly arrest the progress of the execution by filing an affidavit of illegality setting up that he did not owe the amount of the execution and that the assessment against the two lots the title to which was not in him at the time of the assessment should not be charged against him; and further setting up that no assessment was due on the other lot, title to which remained in him, such affidavit being one “denying that the whole . . of the amount for which the execution issued is due.” Ga. L. 1927, pp. 321, 330, sec. 11.
(a) Consequently the trial judge did not err in overruling the motion to dismiss the affidavit of illegality upon the ground that it was not the proper mode of defense to such execution, but that the right to defend against the execution, if any, arose under section 12 of the above act of August 25, 1927, which provides, in substance, that no suit shall be sustained to set aside any such assessment, or to enjoin the governing body from making or fixing or correcting the same, or issuing or levying executions therefor, or issuing such bonds or providing for their payment, or contesting the validity thereof on any grounds or for any reason other than the failure of the governing body to adopt and publish the preliminary resolution provided for in section 3 of the act in cases requiring such resolution and its publication, or to give notice of the hearing of the return of the appraisers, unless such suit shall be commenced within thirty days after the passage of the ordinance making such assessment final. Ga. L. 1927, pp. 321, 332.
(b) While, under the general law, abutting real property is subject from the date of the ordinance or resolution assessing the property for paving (Cheatham v. Palmer, 176 Ga. 227, 167 S. E. 522), it appears from the affidavit of illegality and the evidence in this case that the defendant in fi. fa. had parted with his title to two of the lots levied on prior to the passage of the ordinance or resolution assessing the property for the cost of paving the street.
(c) A defense good as against a general demurrer or an oral motion to dismiss being set forth in the affidavit of illegality inter
2. A ground of a motion for new trial complaining of the action of the trial court in admitting certain testimony of the defendant in fi. fa., without distinctly setting forth the testimony objected to, so that it is necessary for this court to refer to the brief of the evidence in order to intelligently pass upon such ground, is not complete within itself and presents nothing for adjudication by this court. Shaw v. Jones, 133 Ga. 446 (66 S. E. 240); Askew v. Sparks, 44 Ga. App. 710 (2) (162 S. E. 838); Strahley v. Hendricks, 40 Ga. App. 571 (150 S. E. 561); Ga.-Fla. Motor Lines v. Slocumb, 45 Ga. App. 204 (164 S. E. 166); Blackwell v. Houston County, 168 Ga. 248 (147 S. E. 574); Odum v. Rutledge; 16 Ga. App. 350 (85 S. E. 361); Franklin v. State, 28 Ga. App. 460 (112 S. E. 170); Nichols v. Schoen Brothers Inc., 44 Ga. App. 257 (161 S. E. 265); Bright-Brooks Lumber Co. v. Garrett, 45 Ga. App. 390 (165 S. E. 146). Moreover, it was not error requiring the grant of a new trial, if it was error at all, under the objections urged by the plaintiff, for the court to permit the defendant in fi. fa. to testify that the paving of the street in front of the vacant lots would not add anything to their value, the objections being that this evidence was in the nature of an objection to the assessment of the defendant’s property, and should have been made, under section 12 of the act of August 25, 1927, within thirty days from the passage of the ordinance or resolution assessing his property, and that the ground of the affidavit of illegality interposed by the defendant in this case, under section 11 of said act, was only that the amount set forth in the execution was not due to the city by the defendant, and that therefore, to allow this witness to so testify was to allow him to make an attack on the paving assessment in the affidavit of illegality, which was not authorized by the law permitting the same, but was only authorized to be done in the manner pointed out in section 12 of the act.
3. A ground of a motion for a new trial, assigning error on the admission of certain documentary evidence, which does not suffi
4. The court did not err in admitting in evidence a letter from the person to whom the defendant in fi. fa. claimed to have sold the realty in question, informing the city clerk that he wished to have the assessments made against his property, describing the same therein, made payable in ten annual installments as provided in the act of August 25, 1927 (Ga. L. 1927, pp. 321, 335). The paragraph of the affidavit of illegality setting forth that such person had so advised the city clerk not having been demurred to, the defendant in fi. fa. was entitled to prove 'the allegations of his affidavit of illegality as laid, and evidence in support thereof was admissible and pertinent. L. & N. R. Co. v. Bean, 49 Ga. App. 4 (174 S. E. 209).
(a) The trial court properly permitted the city clerk to testify as to a notation in figures put by him on the bottom of such letter so received by him, such figures totalling the amount of the assessment made against this property.
(5) The court did not, in this connection, err in permitting the city clerk to testify that when he received this request from J. L. Pounds, the person to whom the defendant in fi. fa. claims to have sold two of the lots assessed, the defendant in fi. fa. and the said J. L. Pounds came to his office and asked that the property assessment be divided, and that not all of it be placed in one assessment. Such evidence was permissible as showing knowledge on the part of the plaintiff in fi. fa., through its proper officer, the city clerk, before the-issuance of the execution in this case, that J. L. Pounds
5. Where a ground of a motion for a new trial complaining of the admission in evidence of certain testimony sets forth the question propounded to the witness, but does not disclose the answer of the witness, and it is necessary to refer'to the brief of the evidence in order to pass upon the admissibility of such testimony, it is incomplete and will not be considered by this court. Martin v. State, 44 Ga. App. 284 (161 S. E. 371); Smith v. State, 45 Ga. App. 356 (164 S. E. 451); City of Atlanta v. Gore, 47 Ga. App. 71 (169 S. E. 776); Gibson v. State, 176 Ga. 384 (168 S. E. 47) .
6. Great latitude should be allowed counsel in the cross-examination of a witness. “The right of cross-examination, thorough and sifting, belongs to every party as to the witnesses called against him.” Civil Code (1910), § 5871. Furthermore, an assignment of error on the refusal to allow a question on cross-examination need not set forth what answer was expected of the witness. Macon Union Co-op. Asso. v. Chance, 31 Ga. App. 636, 637 (122 S. E. 66). While this is true, the court did not err in refusing to permit counsel for the plaintiff in fi. fa. to ask the city clerk on cross-examination, “If the assessment made by the city is correct, M. T. Pounds [defendant in fi. fa.] owes this assessment that we are attempting to collect in this case?” This question called for a conclusion by the witness as to a matter which could only be determined by the jury under proper instructions from the court.
7. While it is true that a conveyance of the legal title to real estate must be in writing, the court did not err in permitting a witness to testify that she recollected the transaction between the defendant in fi. fa. and J. L. Pounds,—that she heard the conversation between them, concerning the sale of the two lots in question to the latter. The defendant in fi. fa. was not attempting to prove the title to the lots involved in J. L. Pounds by this testimony, but was offering the same to show that such a transaction had taken place between these two persons. There was introduced in evidence, unobjected to, a warranty deed from the defendant in fi. fa. to J. L. Pounds, dated November 29, 1930, conveying the lots in question, and expressing a consideration of $253.25. Said evidence was not objected to as being hearsay.
8. The defendant offered in evidence a document marked “Cor
9. It was not error to permit the city clerk to testify that after the change was made in the assessment roll and this correct sheet made, he did not know whether the matter was discussed in council meetings or not; but that he did not recollect that there
10. The plaintiff in fi. fa. objected to the introduction in evidence of a certain written notice given to J. L. Pounds by the city through its clerk as to an installment being due on the property in question. The ground of the motion for new trial recites: “ Counsel for plaintiff: ‘We make the same objection as to the notice to J. L. Pounds based upon an altered record, by the clerk of the City of LaGrange, and it is not certified as being correct.’ The court: CI overrule your objection and 'let them both in.’ This was harmful error to plaintiff because it' allowed the jury to consider the spurious evidence made by the defendant, his son and the clerk, J. H. Moss.” It will be readily seen that this ground of the motion for new trial is not intelligible without reference to other grounds of the motion for new' trial, the record and the brief of evidence. See Fouts v. State, 175 Ga. 71 (165 S. E. 78) ; Blakeney v. Bank of Hahira, 176 Ga. 190 (167 S. E. 114); Pepper v. Pepper, 169 Ga. 832 (152 S. E. 103), and cases cited supra.
11. The defendant in fi. fa. owned 'three lots abutting on a street in a municipality. Steps were taken to improve this street by paving it under an act of the General Assembly empowering the city so to do. Before the lots were assessed for the cost of the improvement the defendant in fi. fa. sold two of the lots to his son for a valuable consideration under an ■ oral contract of purchase, no deed thereto being made at that time. It does not appear that this transaction was a scheme to evade the payment of any legal assessment against the property for the cost of the improvement. The son took possession of said two lots, which were vacant lots, by building a chicken-house thereon. The city had such knowledge of the transaction that it assessed said two lots for their pro rata share of the cost of the paving and mailed a
12. The court did not err in charging the jury as follows: “As you understand, the defendant in this case, in the first place, insists that he owes the city nothing, for the reason, he insists, [that] prior to the date of this assessment . . he had sold lots 6 and 7 to J. L. Pounds, and says the city had no right to assess the cost of the paving along these two lots against him. I charge you in this case if you find from the evidence in this case that prior to the date of the assessment roll by the city authorities,
13. The court did not err in charging the jury that “in passing upon that, whether or not there was such a sale as that made, you look to the evidence and see when it was made, if you find it was made at all,—if you find it was a bona fide trade, whether it was based on any valuable consideration, and whether or not J. L. Pounds went in possession and took control of these lots, and as to whether or not that took place prior to the date of the approval of this assessment roll by the city council of LaGrange. As I have already charged you, if you find all those things were true, then, I charge you, that the city would have no right to assess the cost of this paving abutting these two lots in question against M. T. Pounds,” because the transaction between the defendant in fi. fa. and his son, made prior to the assessment roll, to have been binding upon the city, must have been brought to its notice either by placing it upon record or by actually notifying the city. The evidence authorized a finding that the city had notice of the transaction through its city clerk. The question of the bona fides of the acts of the city clerk in connection with this matter was for the jury, and by their verdict they decided that question adversely to the city in this case.
14. The trial court did not err in charging the jury that “If you find further, that M. T. Pounds, has paid all the assessment, or all the annual installments that are due against lot number 11,
15. In the affidavit of illegality the defendant in fi. fa. set up that the land levied on received no special benefit from the paving and that the assessment was therefore void, and that to allow the execution to proceed would be a confiscation of the property under the guise of taxation for special benefits, which would amount to a taking of the property without due process of law, in violation of the State and Federal constitutions. The court charged the jury that “in no event could the city recover more from the defendant than the amount of value of the benefits derived to this property from this pavement along and abutting to his property; that the theory of this special assessment is that the property abutting upon the pavement will receive special benefits from the pavement, and in that way the city has the legal right and authority to collect from the abutting property owners the amount of benefits thus received. • The city in no event could recover a greater amount than the benefits accruing to this property by reason of the paving abutting on the property—this property on Alford street.” Any objection to the assessment as being void should have been made as provided iii section 12 of the act, within thirty days after the passage of the ordinance making such assessment final, there being no contention that the assessment was not advertised and notices thereof sent to the property owners as provided in the act; and the defense that the assessment is void because the property levied on under the execution issued for the unpaid assessment had received no benefit from the improvement was not a proper ground for attacking the progress of the execution by affidavit of illegality. The defendant in fi. fa. is now precluded from making this attack upon the ordinance
16. It follows that the trial judge did not err in overruling the city’s motion for a new trial.
Judgment ajjw-med.