Dawson v. Dawson

Nov 25, 1898
Reporters:
, ,
Before:
Simmons
Simmons, C. J.

1. The decision in the case of State v. Hancock, 79 Ga. 799, followed in Barnes v. Lewis, 98 Ga. 558, fully covers the law and facts in this case. The reasoning in the decision in that case also applies to this; and the principle announced therein is the same as that involved in the case under consideration. In the Hancock case a claim was interposed by the true owners. In this case there was no claim, but a sale made under a tax fi. fa. by the sheriff, a purchase by a third party, and a suit by the true owners to recover the property. Here the father had given this property to his children, remained in ‍‌‌​​‌‌​​‌‌‌​​​‌​‌‌​‌‌‌‌‌‌‌‌​‌‌‌‌​‌‌‌‌‌‌​​​‌​‌‌​‌‌‌‌​​​​‌‌‌‌​‌​​‌‌‌​​‌​​​​​​​‌‌‌‌‌‌​​‌‌‌​​‌‌​​‌​​‍possession for years, and returned the property to the tax-receiver as his own. This court held, in the Hancock case, that “ it is not incumbent upon the State or county to investigate the legal title to property before assessing the same. The only duty of the tax-receiver of the State and county in regard to this matter is’ to see that all the property, not exempted as above set out,, is returned by some one. If it is not returned by the legal owners, as in this case, but is returned by the husband and father while in possession, the State and county are entitled to the taxes thereon, and if the taxes are not paid by the person who returns the property for taxation, nor by the legal owner thereof, the tax-collector, finding the return of the property on the receiver’s digest, has a right, indeed it is his duty, to issue execution against the person who returned the same, and have it levied thereon.” It was also held that if the person making the return returned this property of which some belonged to his children and some to himself, it was the duty of the children to pay the taxes on their property so returned by the father, and ‍‌‌​​‌‌​​‌‌‌​​​‌​‌‌​‌‌‌‌‌‌‌‌​‌‌‌‌​‌‌‌‌‌‌​​​‌​‌‌​‌‌‌‌​​​​‌‌‌‌​‌​​‌‌‌​​‌​​​​​​​‌‌‌‌‌‌​​‌‌‌​​‌‌​​‌​​‍that, if they did not do so, the property should be sold. The record shows that it was sold, purchased by a third party, and not redeemed by the ■children within twelve months as the statute requires. Whether *48they were minors or adults at the time of the sale does not matter, so far as redemption is concerned. The statute makes no exception in favor of minors for redeeming property sold under a tax execution.

2. The law allows the losing party in the trial court, if he wishes to have alleged errors therein reviewed in this court, and is unable to pay the cost, to file an affidavit in forma pauperis of his inability. That affidavit is filed in the office of the clerk of the trial court, and a certified copy is transmitted to. this court as part of the record. The record in the present case contains what purports to be a pauper affidavit, signed by the plaintiff in error. The writing states that she is unable to pay the cost. It purports to be attested by one T. W. Bates, notary public. There is nothing on or in the paper to indicate where the alleged affidavit was made, what county or State. If the venue had been stated as ‍‌‌​​‌‌​​‌‌‌​​​‌​‌‌​‌‌‌‌‌‌‌‌​‌‌‌‌​‌‌‌‌‌‌​​​‌​‌‌​‌‌‌‌​​​​‌‌‌‌​‌​​‌‌‌​​‌​​​​​​​‌‌‌‌‌‌​​‌‌‌​​‌‌​​‌​​‍Georgia, Muscogee county, we would have inferred that Mr. Bates was a commercial notary public in that county; but as it fails to give the venue, we can not take judicial cognizance that Mr. Bates is an officer authorized to administer an oath. No affidavit having been filed as required by law, the statute requires the plaintiff in error or her counsel to pay the cost. Counsel appealed to us to remit the cost, on the ground of the poverty of the plaintiff in error and the fact, he says, that Bates was a notary public in Muscogee, county. While we would be glad to relieve counsel, in every case of this kind, from the payment of the cost, we can not disregard the law which requires them to pay it. Appeals of this kind have become very frequent of late years, in this court.. Counsel, through oversight or negligence, fail to prepare these affidavits according to the law; and then appeal to us to remit the cost. All the costs of this court belong to the State. They are appropriated to the payment of the salaries of certain officers, if they amount to the sum paid them. If they are not. sufficient to pay these salaries, the deficit is ‍‌‌​​‌‌​​‌‌‌​​​‌​‌‌​‌‌‌‌‌‌‌‌​‌‌‌‌​‌‌‌‌‌‌​​​‌​‌‌​‌‌‌‌​​​​‌‌‌‌​‌​​‌‌‌​​‌​​​​​​​‌‌‌‌‌‌​​‌‌‌​​‌‌​​‌​​‍paid out ©f the State treasury. If they amount to more than sufficient, the excess is turned into the treasury. The State, by its law, remits the costs when the plaintiff in error complies with certain prescribed regulations. These regulations have not been complied *49with in the present case, and this court has no authority to remit the costs. The remission of these costs to pauper litigants is gratuitous on the part of the State. We regret to say that a great many litigants take advantage of the law when, in our opinion, they are really not entitled to its benefits. Many cases come before us where parties, excused under this law from the payment of costs, appear from the records to own and possess a. considerable amount of property. We would respectfully recommend to the legislature that the law be so amended as not to allow parties to be themselves the sole judges of the truth of their affidavits of inability to pay the small amount of costs taxed in this court. We are the more impressed with the importance of this matter since the report of the clerk of the number of these cases on the present docket. This report shows that’ of the 497 cases so far returned ‍‌‌​​‌‌​​‌‌‌​​​‌​‌‌​‌‌‌‌‌‌‌‌​‌‌‌‌​‌‌‌‌‌‌​​​‌​‌‌​‌‌‌‌​​​​‌‌‌‌​‌​​‌‌‌​​‌​​​​​​​‌‌‌‌‌‌​​‌‌‌​​‌‌​​‌​​‍to this term of the court, 177 are brought up by the plaintiffs in error who have availed ‘themselves of the benefit of the law. The plaintiffs in error in more than one third of the cases brought to the present term are, according to this report and the affidavits filed by them, too poor to raise the small amount of ten dollars to pay for having their cases passed upon by this court. The sum of $1,770 is thus given by the State to these litigants at one term of the court.

Judgment reversed.

All the Justices conewring, except Lumpkin, P. J., and Little, J., absent.