185 Ga. 208 | Ga. | 1937
Mrs. W. W. Sharpe, and other property owners in the City of Waycross brought their petition against the City of Waycross and the marshal thereof, seeking to enjoin sales of their respective properties under levies of executions for collection of paving assessments properly assessed under the act of 1925 (Ga. L. 1925, p. 1557 et seq.), on the grounds that more than seven years had elapsed since the “rendition of the assessments (or judgments) ” and “before the paving executions were issued thereon and entered upon the general execution docket;” and because said assessments or judgments were dormant at the time the said
Before we go into a discussion of the merits of the case as made by the 'rulings on demurrer to the petition, we think it advisable that we have before us a picture of the general nature of the act of 1925, supra, pursuant to which the executions attacked were issued. The act is one of those commonly known as “Oklahoma plan baby-bonds” act. It provides a machinery for the paving and improvement of the streets of the City of Waycross at the expense of the property owners, and for the issuing of bonds to secure funds for payment of the improvements. The city by ordinance or resolution declares the necessity of having the work done, and the ordinance or resolution is published and opportunity given for protest by the property owners (§3). The expense of the improvements is apportioned among the various abutting-property owners according to the frontage of their respective properties on the street to be improved (§4). If no protest is filed to the proposed improvement, or one half of the property owners petition for the improvement, the city shall by resolution express its intention
We will first deal with the attack made on the constitutionality of that portion of section 11 of the act of 1935, which provides for the yearly issuance of an execution over a period of ten years, to enforce payment of the instalments on the paving assessments as they become due. The general laws, the provisions of which it is contended that the special act conflicts with, contrary to the constitutional provision that no special law shall be enacted in any case for which provision has been made by a general law, are found in the Code, § 110-1001, which declares that a judgment shall become dormant if seven years elapse after the rendition of the judgment before execution is issued thereon and entered on the general execution docket, and § 93-7703, which declares that all laws with reference to a period of limitation as to ordinary executions, etc., are applicable to tax executions, and § 3-716, which declares that “all executions issued by any municipality shall be subject to the same laws as to the statutes of limitation now governing other executions.” The real question made by this attack on the constitutionality of section 11 of the act of 1935, supra, is whether or not the period of limitation as to dormancy begins to run from the date of the assessment fixing the lien, or from the date provided for the issuance of the execution to enforce the assessment. On the answer to this question depends the constitutionality of the portion of the act of 1935 attacked. It is contended that the executions provided for in the act of 1935 are analogous to tax executions, and therefore that the period of limitation as to tax executions is applicable thereto. The plaintiffs rely on Lewis v. Moultrie Banking Co., 36 Ga. App. 347 (136
The plaintiffs contend, however, that inasmuch as the executions, the enforcement of which is sought to be enjoined, were not issued yearly as the instalments on the assessments became due, but were issued for the full amount at the end of the ten-year period, those portions of the assessments which remained due and for which no executions were issued and recorded or levied within seven years are now dormant and unenforceable, under the ruling in Lewis v. Moultrie Banking Co., and Herring v. Citizens Bank of Cairo, supra. Whether or not the rule announced in those cases is applicable to each instalment of the assessments in the instant case, or, if applicable, is applicable only when the last instalment becomes due, it is not necessary to decide; this for the reason that there was no tender or offer to pay that portion of the instalments which the petition, in view of the above ruling on the constitutionality of the instalment method of issuing executions, shows to be due and unpaid. See Code, § 37-104; Wilkinson v. Holton, 119 Ga. 557 (46 S. E. 620); Peoples Credit Clothing Co. v. Atlanta, 173 Ga. 653 (160 S. E. 873), and cit.; Candler v. Gilbert, 180 Ga. 679 (180 S. E. 723). It is true that the petition alleges that nothing is owed on said assessments “in virtue of said act;” but, as we have construed the petition on demurrer and the act pursuant to which the executions were issued, the petition as a matter of law shows that the petitioners are obligated to at least that portion of the assessments which became due within seven years of the issuance and levy of the executions and the filing of the instant suit.
For the same reasons it is not necessary to pass upon those features of the case relating to usury. Weaver v. Bank of Bowersville, 146 Ga. 142 (90 S. E. 864); Matthews v. Banks, 146 Ga. 732 (92 S. E. 52); Liles v. Bank of Camden County, 151 Ga. 483 (107 S. E. 490); Latimer v. Lyon, 177 Ga. 888 (171 S. E. 562); Wardlaw v. Woodruff, 175 Ga. 515 (165 S. E. 557); Biggers v. Home Building & Loan Asso., 179 Ga. 429 (176 S. E. 38); Washington & Lee University v. Suburban Development Co., 183 Ga. 130 (187 S. E. 647). Since the usury allegedly charged is not connected with any contract to take or charge usury, the question whether or not in such a .case one would be required to tender the
Under the above rulings, the petition failed to set forth a cause of action for the relief prayed for. The court did not err in sustaining the general demurrer and in dismissing the case.
Judgment affirmed.