Ayers v. Mobley
| Decision Date | 08 July 1982 |
| Docket Number | No. 64171,64171 |
| Citation | 293 S.E.2d 470,163 Ga.App. 239 |
| Parties | AYERS v. MOBLEY et al. |
| Court | Georgia Court of Appeals |
Marson G. Dunaway, Jr., Rockmart, for appellant.
Sara Langland, Wayne W. Gammon, Cedartown, for appellee.
In 1976 the tax commissioner of Polk County issued a number of fi. fas. for delinquent ad valorem taxes for the years 1972 through 1976. Among these fi. fas. were those for delinquent taxes of Eual Ayers. On October 11, 1976, J. A. Bryant, as deputy sheriff of Polk County, Georgia, received a considerable number of the tax fi. fas. for the purpose of levying upon property of the delinquent taxpayers and among these delinquent taxpayers was Ayers. Bryant later levied upon certain described property of Ayers.
Thereafter, on June 27, 1977, Ayers filed a petition in equity against Mobley and Bryant, as defendants, seeking to enjoin the sale of his property and for declaratory relief, including a declaration that certain statutes are unconstitutional. A temporary injunction was issued provided that the plaintiff Ayers tender or pay all outstanding tax fi. fas. for ad valorem taxes owed by him for all years prior to 1974, together with interest and penalties accrued, but if he failed to pay or tender same the sale might proceed for all outstanding ad valorem tax fi. fas. against him. Ayers did not pay the taxes up to 1974 and subsequently thereto the property levied upon was sold at public auction. The defendants failed to answer and on November 10, 1978, the plaintiff moved for judgment by default as to the declaratory judgment, permanent injunction and liability for damages and for trial on the issue of the amount of damages.
The defendants then moved to be allowed to open the default judgment with answer attached, and the same was thereafter granted.
The plaintiff amended his complaint seeking a money judgment jointly and individually against the defendants seeking actual and exemplary damages and attorney fees. The action came on for trial on February 11, 1980, and at the close of evidence offered by the plaintiff, the trial court directed the jury to return a verdict for the defendants and entered a final judgment accordingly against the plaintiff. Plaintiff's motion for new trial as later amended was filed, heard and denied. Plaintiff appeals. Held :
1. This case was originally filed in the Court of Appeals but transferred to the Supreme Court by order. In Ayers v. Mobley, 248 Ga. 869, 287 S.E.2d 4, the Supreme Court held that the injunction and declaratory features of the case became moot when the plaintiff failed to comply with the terms of the temporary order and the property was sold for delinquent taxes and the action then remained as a claim for money judgment. That court also held that the action did not raise the constitutionality of a statute or involve equitable or extraordinary remedies within its jurisdiction, and the action remained one seeking a money judgment against the county deputy sheriff and the county tax commissioner as the result of the sale of plaintiff's property to satisfy delinquent county ad valorem taxes, hence the appeal was within the jurisdiction of this court. The case was returned to this court for review. See also in this connection Butts County v. Briscoe, 236 Ga. 233, 236(6), 223 S.E.2d 199, holding that the taxpayers' rights having accrued, they are not entitled to injunctive or declaratory relief. We proceed to review based upon whether or not the trial court erred in directing the verdict against the plaintiff with reference to his action for damages.
2. Plaintiff first contends there was a conflict of evidence as to material questions of fact which would prevent the direction of the verdict against him. In support of same he argues that he was entitled to a declaration of his rights and that he was not given an adequate, speedy or efficient legal remedy to prevent the sale of the property and that he would be irreparably injured by the sale. But all of these issues have been removed from the case with the transfer of the case for review of the issue of damages alone to this court. Plaintiff also contends that it is basic law that it is error for the court to direct a verdict in the face of a conflict in material evidence unless the evidence introduced and all reasonable inferences therefrom demands a particular verdict, citing Tift v. Gulf Oil Corporation, 223 Ga. 83, 84(2), 153 S.E.2d 702; Security Life & Trust Company v. Smith, 220 Ga. 744, 747(2), 141 S.E.2d 405; Isom v. Schettino, 129 Ga.App. 73, 74(1), 199 S.E.2d 89. However, the defendants contend that the plaintiff had produced no evidence of damage to support any money judgment in his favor. That is, he had the burden of proof of showing a loss to him which he failed to do, citing Big Builder, Inc. v. Evans, 126 Ga.App. 457, 458, 191 S.E.2d 290; Studebaker Corporation v. Nail, 82 Ga.App. 779, 785, 62 S.E.2d 198; and Smith v. Barfield, 157 Ga.App. 231, 232-233(2), 276 S.E.2d 899; Hayes v. Flaum, 138 Ga.App. 787, 227 S.E.2d 512.
Plaintiff argues that the evidence showed the fi. fas. and levy were void in failing to show the necessary...
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City of Duluth v. Riverbrooke Properties
...686, 463 S.E.2d 46 (1995); Tenn. Farmers Mut. Ins. Co. v. Wheeler, 170 Ga.App. 380(1), 317 S.E.2d 269 (1984); Ayers v. Mobley, 163 Ga.App. 239, 240(1), 293 S.E.2d 470 (1982). Moreover, even assuming that the trial court had facts that supported the exercise of equity jurisdiction in the sup......
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Oxendine v. Elliott
...be assets instead of liabilities. Accordingly, plaintiff has failed to make a case for recovery of damages. See Ayers v. Mobley, 163 Ga.App. 239, 240-241(2), 293 S.E.2d 470). The question of damages cannot be left to speculation, conjecture and guesswork. See Smith v. Barfield, 157 Ga.App. ......
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