180 Ga. 598 | Ga. | 1935
What purported to be a tax execution was is
Only the third headnote requires elaboration. In Herrington v. Ashford, 157 Ga. 810 (3) (122 S. E. 197), it was held that the owner of land levied on under executions for taxes assessed by the State, county, and city, on returns made by another person, had an adequate remedy by claim, and did not need an injunction to prevent sales thereunder. The decision did not state whether the charter of the City of Atlanta contained any provision for the filing of a claim in such a case, the municipal tax fi. fa. there involved having been issued by that city. In Dodson Co. v. Upham, supra, it was pointed out that the charter of the City of Atlanta does not contain such a provision, and that injunction would lie in such a case. The decision in Herrington v. Ashford, supra, however, was concurred in by all the Justices, and, being older than that in the Dodson case, would control unless it is in conflict with 'an earlier decision or decisions. Whether or not that is true will now be considered. We will first mention the fact that the ruling made in the Herrington case was based upon the following authorities: Civil Code (1910), § 1159; Racine Iron Co. v. McCommons, 111 Ga. 536 (36 S. E. 866, 51 L. R. A. 134). Section 1159 of the Code of 1910 is as follows: “When property is levied on under a tax fi. fa. issued either by the comptroller-general or tax-
In Lingo v. Harris, 73 Ga. 28, it was stated that “no one ever supposed” that this law “extended to property levied on by tax execution;” and with reference to the act of 1870, providing for the filing of claims on pauper affidavits (Ga. L. 1870, p. 411; Civil Code (1910), § 5164; Code of 1933, § 30-807), the court in the same decision said: “Can it be that the legislature intended, by the use of the words ‘claim cases/ to include cases of claims under levies by tax executions ? It is not probable. It has been shown that there is a wide distinction between the liability of ’claimants and their sureties in cases of claims to property levied on by executions issued on judgments at law and claims to property levied on by tax execution. It is to be presumed that the legislature was cognizant of this difference when it enacted the law of 1870. It would be somewhat rash to presume that the legislature intended, by the use of the words ‘claim cases/ to include claim cases which arose from levies of tax executions. .Especially would this be so, when the consequence of such a construction might lead to the embarrassment of the State’s operations, the postponement of the collee
From what has been said it must be held that no provision for the filing of a claim to property levied on under a city-tax execution is contained in the general law; and that before such a claim can be recognized, provision therefor must have been made in the charter of the municipality concerned. Cf. Vanduzer v. Irwin, 138 Ga. 524 (75 S. E. 649); Social Circle Cotton Mill Co. v. Social Circle, 163 Ga. 465 (2) (136 S. E. 432). The charter of the City of Eatonton, like that of the City of Atlanta, does not provide for such remedy. The Civil Code of 1910, § 1163, provides: “No replevin shall lie, nor any judicial interference be had, in any levy or distress for taxes under the provisions of this Code, but the party injured shall be left to his proper remedy in
A motion to dismiss the writ of error was made upon the ground that the case has become moot by a voluntary dismissal of the levy after the bill of exceptions was sued out; but the response to this motion raised an issue of fact as to the dismissal of the levy. It not appearing without dispute that the case is moot, the writ of error will not be dismissed. Tuells v. Torras, 113 Ga. 691 (39 S. E. 455).
Judgment reversed.