144 Ga. 385 | Ga. | 1915
(After stating the foregoing facts.) After hearing the case the trial judge made the following order: “Upon consideration it is ordered that the injunction heretofore granted be and the same is hereby continued, except as to employment of counsel.” We construe this order as not granting an injunction so far as the fees of defendants’ counsel, Sellers, are concerned. There was no evidence introduced attacking the fees of Sellers, and this part of the order need not be further considered. The prayer only seeks to enjoin the commissioners from levying the tax for the court-house. The petition was not verified by the plaintiffs, but only by the attorney for the plaintiffs, the verification being as follows: “You, J. J. Bates, attorney for the plaintiffs in the within petition, do swear that the facts therein contained are true of your'own knowledge, and so far 'as derived from the knowledge of others you believe them to be true.” The answer of the defendants contained the following as to the levy of the tax: “These defendants say that it is not true that they are proceeding and seeking to levy a tax as set out in paragraph two of the petition, ■but aver that they had already levied a special tax for the building of a court-house in said county, prior to the filing of the petition in the above-stated case, and before these defendants had any notice or knowledge that any order had been granted in the above case by the court or that such a petition had been presented to the court.” This answer was sworn to positively by the defendants, and no evidence to disprove or rebut it as to the above allegation was introduced. The rule nisi and order of the court was dated August 20, 1915, and the order of the commissioners levying the tax bore the same date. No evidence was introduced tending to show whether the order of the judge passed at Cartersville, or the order of the commissioners levying the tax (which was doubtless passed at Chatsworth, the county site), was passed first. Sellers, one of the defendants and the clerk of the board of commissioners, made an affidavit that “the said tax levies are a copy of those made by said commissioners on the 20th day of August, 1915; that said levies were made, entered on the commissioners’ court minutes, and a copy thereof delivered to the Chatsworth Times; that a copy was posted before the court-house door of said county at
In New South Building & Loan Association v. Willingham, 93 Ga. 218 (18 S. E. 435), it was held: “Neither the petition nor the answer of the debtors being verified in positive terms, and the hearing having taken place without any evidence, by affidavit or otherwise, establishing the facts alleged in the petition, the judge erred in appointing a receiver and granting an injunction as against the rights and over the objection of the plaintiff in error.” Under the evidence and the record as appears before us, we must take it as true that the county commissioners levied the tax before they had any notice of the grant of the restraining order — if, indeed, one had been granted at that time. If they so acted, then the levy of the tax for the court-house was legal when made; and if it was legal when made, then on a subsequent interlocutory hearing an injunction to restrain the commissioners from making it could not be granted. Copies of the Chatsworth Times were introduced in evidence, showing that the tax levy had been published therein three times, on the following dates: August 26, September 2, and September 9, after notice of the injunction was served on the defendants. This publication contained a copy of the order including a levy of a special tax for the purpose of erecting a court-house. ■ The order bore the signatures of the commissioners. The tax was levied by an order of the commissioners. The publication or advertisement of the order in the newspaper followed the levy of the tax. Although the provision of the Civil Code (1910), § 515, in regard to publishing an advertisement of the copy of the order levying the tax in a public gazette should be complied with, such provision is directory, not mandatory. ' It is not the levy itself, but a publication of a levy already made, which gives to the public notice of such levy. Garrison v. Perkins, 137 Ga. 744 ( 74 S. E. 541); Dunn v. Harris, ante, 157 (86 S. E. 556). If the levy had been legally made, the publication of it three times in the Chatsworth Times after service on the defendants of the restraining order did not render it illegal. If it had been so legally made, and had become an accomplished fact before notice of the restraining order 7va§ had, it could not at a subsequent hearing be
We need not enter into a discussion as to the contention that the contract for the building of the court-house was legal or illegal upon the grounds upon which it was attacked. Neither the restraining order nor the injunction following it referred to the making or the execution of the contract, or sought to enjoin the tax-collector from collecting the tax, but, as fully shown above (aside from referring to the fees of Sellers), was limited to restraining the commissioners from levying the tax.-
Judgment reversed.
