181 Ga. 587 | Ga. | 1936
In order properly to consider the assignments of error it is desirable first to set forth certain provisions of the act of 1925 (Ga. Laws 1925, p. 1480), under the authority of which the street-improvement bonds were issued. That act provides: “That the mayor and council of the City of Thomas-ville is hereby authorized and empowered to establish and change the grade of any streets, avenues, alleys, lanes, and other places in the City of Thomasville, and to improve the same by paving, macadamizing, and draining the same wdienever in its judgment the public convenience and welfare may require such improvements, subject only to the limitations prescribed in this act.” Then follow provisions as to resolutions of the mayor and council declaring such work necessary, advertisement of such resolution, protests from owners, and the statement that “if the owners of a majority of the land liable to assessment to pay for such improvement of any such highway shall not, within fifteen (15) days after the last publication of such resolution, file with the clerk of said city their protest in writing against such improvement, then said mayor and council shall have power to cause said improvement to be made and to contract therefor.” Then are set out provisions for the proportions in which the abutting property owners, and the city where an owner, shall pay for the cost of the improvements, and provisions authorizing the mayor and council to enact all ordi
Section 7 fixes the dates on which the principal and the interest may be paid. “Sec. 8. That such special assessment and each installment thereof, and the interest thereon, are hereby declared to be a lien against the lots and tracts of land so assessed from the date of the ordinance levying the same, coequal with the lien of other taxes and prior to and superior to all other liens against such lots or tracts, and such lien shall continue until such assessment and interest thereon shall be fully paid, but unmatured installments shall not be deemed to be within the terms of any general covenant or warranty. Sec. 9. That the said mayor and council, after the expiration of thirty days from the passage of said ordinance confirming and levying the said assessment, shall
(c) The fourth ground of demurrer is that “the petition shows that there are many tracts of land assessed for the payment of the bonds, matured and unmatured, of said series E and said series C, and that petitioner has not pointed out any particular tract on which to levy, nor has he specifically pointed out any particular fi. fa. for defendant to levy, as would be necessary before petitioner could require defendant to levy.” It is the plain purpose of the act to require of the marshal the levy of all executions delivered to him by the treasurer, and thus to make available, with as little delay as possible, the necessary funds for the payment of the matured bonds. It is apparent from the provisions of the act that the bonds should describe the property on which 'the liens were created, and that fi. fas. should issue against such described property. It is alleged that the marshal is in possession of the requisite fi. fas., and it is to be presumed that the officers did their duty and designated the particular property in the fi. fas. Therefore the marshal needs no direction as to the levy. His duty is to levy all of the fi. fas., and they furnish the necessary information to him. There is no merit in this ground of the demurrer.
(d) The fifth ground of demurrer is that “the petition shows on its face that it is an inequitable proceeding, in that petitioner, as an individual seeking to collect his individual claim, is pursuing a proceeding intended to produce, through the medium of fi. fas. in which many others are interested, an amount of money many
(e) The next ground is that “the petition appears on its face to be defective, and should be stricken, because it seeks to require the defendant to levy upon and sell property without designating and specifying any particular property to be levied upon and sold, and without naming the owner thereof, and without alleging specific facts necessary to authorize the court to pass a rule absolute requiring the defendant to levy on and sell any specific piece of property.” What was said in regard to the fourth ground in paragraph (c) is applicable here.
(/) The seventh ground of demurrer is that “the petition is defective' and should be dismissed, for that the petitioner seeks therein aii order requiring the defendant to advertise and sell property without showing that a legal demand has been made on the defendant to so advertise and sell such property.” It is alleged in the petition that copies of the petitioner’s bonds, series E and C, are attached and made a part thereof, and they, together with a copy of a demand by the petitioner through his attorneys on the marshal, are attached. The copy of the demand shows that it is called to the attention of that officer that the fi. fas. are in his hands, that under the act of 1925 it is his duty to levy them, and that demand is made that he do so in order to enforce the payment of installments as contemplated and provided for in said act. The statute specifies his duties, and they include the levjr, advertisement, and sale of the assessed property. The notice to him constitutes a sufficient demand. This ground of demurrer is without merit.
The second assignment of error is that the court erred in overruling the motion that the case be set down for a hearing by a jury, it being claimed that the pleadings made issues of fact which could not be passed upon by the judge. The third assignment of error is that the court erred in considering the affidavit of the petitioner in support of his petition, and in not ruling out such evidence on motion; it being claimed that all evidence should have been referred to a jury, as issues of fact were made under the pleadings. Similar principles applying these points will be considered together. The denials made 'by the defendant are numerous, and will be dealt with in particularity, so as to determine whether or not they made such an issue as could be passed upon only by a jury. It was denied that no interest had been paid on petitioner’s bonds, series C and E, since September 15, 1932. This does not create anything more than a subordinate issue, and is not of such substance as to prevent the judge from passing upon the main question. It is denied that demand was made for principal and interest on the bonds, and that there has been a refusal by the city treasurer to make payment of the amount due the petitioner. Notwithstanding it is alleged that demand was made for payment, there are other allegations, not denied, which show that it was really a useless gesture to make such a demand. It is alleged that “a large number of persons who are the owners of the several tracts or parcels of land mentioned and set forth in the bonds of said series C and E; whose names are unknown to petitioner, have failed and refused to pay the assessments against their said property, which assessments matured and became due and payable on
The denial that the bonds became liens on the property listed therein, that it was the duty of the treasurer to issue the executions, that it was the duty of the marshal to levy them, and that any legal demand has been made on him to levy, involve questions of law and are not referable to a jury. The denial that the petitioner demanded that the defendant levy any particular execution, or levy on any particular property or advertise and sell, is also without merit, for the same reasons mentioned in the foregoing part of this opinion in the ruling on the various grounds of the demurrer. The act enjoins on the marshal specific duties where defaults have been made in the payment of assessments, and it will be presumed that the fi. fas. delivered to him furnish him the necessary information for the performance of his duties. Furthermore, it is a reasonable conclusion from the answer of the marshal that he does not regard it as his duty to levy the executions, in the absence of additional and needless instructions from the mayor and council, and that a most exact and meticulous demand from.
By way of further answer the defendant alleges that no demand or instruction has been given him by the mayor and council to levy and'collect the executions, and that they have failed to prescribe by ordinance or otherwise that such duty is on him, and therefore that it is not shown that it is his duty to proceed. This manner of pleading is begging the question, and sets up nothing that could be seriously regarded as creating an issue. The bonds, as shown by the exhibits attached to the petition, recite a full compliance with the statute authorizing the bond issue, “pursuant to proceedings duly had by the mayor and council of said city in all respects authorizing the same, and pursuant to a resolution duly adopted by the mayor and council of said city” on the 30th day of April, 1928, and on the 12th day of December, 1927. Certainly the mayor and council are estopped to deny such recitals, and all things required to be done as prerequisites to the issuance of the bonds are legally presumed to have been done. No alternative is left to the marshal under the act except to levy the executions when de
The other assignment of error is that the court erred in granting a mandamus absolute. It is not deemed necessary to set out the affidavit of the petitioner in detail. It is sufficient for the decision on this assignment of error, in order to avoid a further extension of this opinion, to say that it was a substantial equivalent of the allegations of the petition, and made out a prima facie case for the grant of a mandamus absolute. The basis of this conclusion is to be found in what was said in the foregoing part of this opinion in the ruling on* the grounds of the demurrer. It remains only to discuss certain contentions made in the brief of
Judgment affirmed.