Mayor of Gainesville v. Dean, 124 Ga. 750

Mayor of Gainesville v. Dean

124 Ga. 750 | Ga. | 1906

Cobb, P. J.

The first question to be determined by us in the. ■consideration of this case is whether the demurrer to the petition, upon the ground that the petitioner had an adequate remedy at. law, was well taken. The act amending the charter of the City of Gainesville, approved December 12, 1892 (Acts 1892, p. 172), provides that when an execution has been issued against a property ■owner for work done on the street or sidewalk abutting upon his property, he shall have the right “to file an affidavit denying that h.e owes the whole or some part thereof of the sum for which the *752execution issued/’ and the affidavit “shall be returned'to the supe-J rior court of Hall county and there be tried and the issue determined as in cases of illegality/’ etc. The act approved August 17, 1903, amending the charter of the City, of Gainesville (Acts 1903, p. 524), - does not change the above provision of the charter. It would therefore seem that the defendant had a complete remedy at law to prevent the collection of an assessment which for any reason was illegal; But it is contended by the defendant, that, under the above provision authorizing the filing of an affidavit of illegality, he would not be entitled to question the constitutionality of the act of 1903, which he claims is void, nor object to the unlawful issuance of the executions upon the ground that each was issued for two separate items, i. e., macadamizing and curbing. We see no reason why these defenses could not be set up by way of illegality. If the de-r fendant has the right to deny his liability for the whole or any part of the execution which has been issued against him, he can set up any legal defense .which would relieve him of such liability. The uneonstitutionality of the act providing for the collection of such assessments would be as complete a bar to their collection as proof of payment; and the same may be said of an irregularity in the issuances of the executions which might be fatal. It is true that in the case of Rice v. Macon, 117 Ga. 401, it was held that injunction was not a proper method of preventing the collection of such an execution as the above, for the reason that the charter of Macon specially authorized the defendant in execution, by affidavit of illegality, “to raise any constitutional question,” and the charter of .Gainesville has not a similar provision. But we think that ease might have been put upon the broader ground, and that its reasoning might be applied where the simple right to show no indebtedness by illegality is given. It was there said that it appeared that the legislature were “apparently apprehensive lest the right tó contest the validity of the execution might not be deemed sufficient to cover any and every constitutional question.” This apprehension Avas not well founded. It will be noted that the act of 1893 provides that the affidavit of illegality shall be returned to the superior court of Iiall county, “ and there be tried and the issue determined as in eases of illegality.” The effect of this is to open to the affiant every path of defense he might have taken in an illegality case under the code, where the plaintiff was procéeding in a summary *753way. A reading of the charter, provision authorizing this proceeding to prevent the collection of such executions, where for any reason they were not legally collectible, wil) make it clear that the purpose of the legislature was not to limit the defense which might be there set up, but to permit any defense which might be set up in a regular illegality ease of the character above indicated.

The further claim of the plaintiff, that three executions had been issued, and an equitable petition was necessary to prevent a multiplicity of suits, is alsp without merit.. Three executions do not bring about the multiplicity of suits contemplated by the code as a ground for the exercise of the extraordinary powers of a court of equity. The three executions have been issued by the City of Gainesville against the defendant in error. Two have been levied, each upon a separate lot of land. The third has not been levied, and. does not seem to be directed against any specific property. But the allegation is that the marshal is threatening to enforce it by levy. The general rule is that a court of equity will interfere to prevent a multiplicity of actions where they rest upon some common right invaded, or upon some common injury inflicted; that is, where there is one common right in controversy which is to be established by or against several persons, or one person asserting a right against many, or many against one. Under such circumstances a court of equity will not permit a party to be harassed by a multiplicity of suits, but will determine the whole matter in one action. Civil Code, §4894; Smith v. Dobbins, 87 Ga. 316. Even if the issues arising out of the levy of the two executions were identical, the eases would not be within the rule above referred to. Tt has been said that where relief can be clearly afforded by a court of law by an order consolidating the suits, an injunction will be refused. Bispham’s Equity (3d ed.), §417. The law requires an affidavit of illegality to the execution of the character now in question to be returned to the superior court for trial; and if it should appear that the two were identical, although the property levied on was different, the court in its discretion might consolidate the cases. We do not think the facts of the case bring it within the rule which authorizes a court of equity to interpose by injunction to prevent a multiplicity of suits.

But it is said that the executions which have been levied, as well ■ as that which has not been levied, constitute clouds upon the title *754of the owner, the defendant in error. A cloud npon the title of the true owner of the land, such as may be removed in equitable proceedings, is some deed or other writing which by itself, or in connection with proof of possession by a former occupaht, or other extrinsic facts, gives the claimant thereunder an apparent right in or to the property. Civil Code, §4893; Walker v. Lewis, 106 Ga. 758; Hanesley v. Bagley, 109 Ga. 346. The act of August 22, 1905 (Acts 1905, p. 102), does not change the rule just referred to. The effect of that act is merely to authorize a proceeding to remove a cloud when the cloud consists of an instrument which is void upon its face. An execution, whether issued upon an ordinary judgment, or for taxes or an assessment, does not give the plaintiff in execution any real or apparent right “in or to the property” of the defendant in the execution. The judge erred in granting the injunction.

Judgment reversed,

All the Justices concur.