Equitable Bldg. & Loan Ass'n Of Albany v. State

• Decision Date: 10 June 1902
• Court: Georgia Supreme Court
• Parties: EQUITABLE BUILDING & LOAN ASS'N OF ALBANY. v. STATE et al.

42 S.E. 87

115 Ga. 746

EQUITABLE BUILDING & LOAN ASS'N OF ALBANY.

v.STATE et al.

Supreme Court of Georgia.

June 10, 1902.

TAX EXECUTION—VALIDITY.

Since a tax execution is not founded upon the judgment of any court, but is a purely summary process, it is essential to the validity of such an execution that all the necessary jurisdictional facts authorizing its issuance should appear upon its face. It follows that a writing purporting to be such an execution, but which merely commands the levying officers to whom it is directed to make of the property of a named corporation a specified sum, as "now due and owing to said state and county for taxes, back taxes up to 1899, as well as all lawful costs, " is void.

(Syllabus by the Court.)

Error from superior court, Dougherty county; W. N. Spence, Judge.

Action by the state and others against the Equitable Building & Loan Association of Albany. Judgment for plaintiffs, and defendant brings error. Reversed.

S. J. Jones, for plaintiff in error.

D. H. Pope & Son, for the State.

LUMPKIN, P. J. The tax collector of Dougherty county issued what purported to be a tax execution against the Equitable Building & Loan Association of Albany, Ga. It was in the following words: "Georgia, Dougherty County. To All and Singular the Sheriffs and Constables of This State: You are hereby commanded that of the goods and chattels, lands and tenements, of Equitable B/L Ass'n, Albany, Ga., you levy, and by distress and sale thereof, sufficient to make the sum of five hundred thirty-five dollars (535.38) and 38 cents, now due and owing to said state and county for taxes, back taxes up to 1899, as well as all lawful costs, and you make due return according to law. Given under my hand and seal this 23d day of July, 1900. [Signed] J. T. Hester, Tax Collector." The case now before us presents for determination the question whether or not this was a lawful and valid tax execution. It was in the court below attacked as void upon the following grounds: (1) Because it "did not show on its face the proper legal authority for its issuance"; (2) that it "did not show for what years said 'back taxes' were due and owing, nor how much was due each year"; and (3) that it "was not issued from any return or assessment entered on the tax digests of said county." The trial judge held that it was a legally sufficient execution. We are of a contrary opinion. Section 847 of the Political Code reads as follows: "If a person fails to make a return, in whole or in part, or fails to affix a value to his property, it is the duty of the receiver to make the valuation and assess the taxation thereon, and in all other respects to make the return for the defaulting person from the best Information he can obtain; and having done so, he shall double the tax in the last column of the digest against such defaulters, after having placed the proper market value or specific return in the proper column; and for every year's default the defaulter shall be taxed double until a return is made." Section 848 is in the following language: "If there is taxable property,...