Gruber v. Fulton County

• Decision Date: 06 January 1965
• Docket Number: 2,3,Nos. 1,No. 40950,40950,s. 1
• Parties: Edith K. GRUBER v. FULTON COUNTY
• Court: Georgia Court of Appeals

Page 552

140 S.E.2d 552

111 Ga.App. 71

Edith K. GRUBER v. FULTON COUNTY.

No. 40950.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Jan. 6, 1965.

Rehearing Denied Jan. 27, 1965.

Syllabus by the Court

1. Tax returns in which the values of the property were inserted by someone other than the taxpayer are not admissible

in evidence for the purpose of showing value.

2. Argument of counsel based upon the values of property shown on a tax return that is inadmissible is improper, being unsupported by any legal evidence.

3. A request to charge must be proper, legal and adjusted to the evidence, and unless it is so it should be refused.

4. Where it does not appear that photographs tendered fairly represent a property that is comparable to that being condemned it is not error to exclude them.

5. Where plans for a building which the owner proposed to construct on lands being condemned are admitted into evidence with the admonition to the jury that they were admitted for the showing of value of the land, if they did, and in the light of all the other evidence, the restrictive admission of the evidence was not error.

6. Where the judgment is being reversed on other grounds an assignment that the verdict was grossly inadequate will not be considered.

Fulton County instituted a condemnation proceeding to acquire 0.62 acres of land near the southbound exit ramp at Lakewood Avenue on the South Expressway for the purpose of widening the Expressway. The special master made an award to the owner, Mrs. Gruber, of $21,500 and the county appealed. On a trial before a jury in the superior court Mrs. Gruber's husband testified in her behalf that she had acquired the property about eight years previously when it was then zoned for residential use, but that he and his wife had intended to develop it and another tract that he owned as a motel site. His son, an architect, had drawn preliminary plans for a motel to be located on it in 1958, after which he had tried to apply for a zoning change to commercial but was advised by an employee in the Atlanta-Fulton planning Department that the property was 'frozen' as residential because of highway expansion plans that had been in the mill with Federal approval since 1956. It did not appear that he had made formal application to the City of Atlanta for a change in the zoning classification.

Becasue of its residential classification, witnesses for the county placed valuations on the property of from $3,750 to $4,000, while witnesses for the condemnee testified that it was well located for development as a motel site and that if it had been reclassified as commercial so that it could be so developed, as had been several other properties similarly located in the near vicinity, its value would range from $30,500 to $50,000. Tax returns of the condemnee for the year 1962 were admitted which, though signed by her husband as her agent in making the return, were completed by the city and county authorities when they typed in values under columns headed 'City Assess.' and 'County Assess.' The return was objected to on the ground that it did not reflect any declaration of value by the taxpayer, but rather an assessment by the taxing authorities.

There was denial of a request to charge that if they city had refused to rezone the property solely because of the planned highway expansion the jury might nevertheless consider its possible commercial use in determining the fair market value.

The jury returned a verdict for $5,950. To the overruling of her amended motion for new trial the condemnee excepts.

Kilpatrick, Cody, Rogers, McClatchey & Regenstein, George B. Haley, Jr., William C. Lewis, Jr., Atlanta, for plaintiff in error.

Harold Sheats, George Gillon, T. Charles Allen, Atlanta, for defendant in error.

EBERHARDT, Judge.

1. In Seagraves v. Seagraves, 193 Ga. 280(1), 18 S.E.2d 460 it was held: 'A tax return is admissible in evidence to show the amount and value of the property admitted by the taxpayer to be his; but where such a return contains assessments made by some one other than the taxpayer, the assessments are not admissible.' The returns in that case were on the forms used in Fulton County, apparently identical in all respects with the forms used for the taxpayer's return here, and, as here, the values of the land were typed in under the columns headed 'City Assess.' and 'County Assess.' though signed by the taxpayer or his agent.

It is contended by the condemnor that this situation is distinguishable from that in Seagraves in that the tax return introduced in evidence in this case was sworn to or verified by the condemnee's husband, who made the return as her agent, while it does not appear from the opinion in Seagraves whether the return in that case was verified or not.

It is true that tax returns are required by law to be verified by the person making the return. Code Ann. § 92-6216. The oath is required to be 'subscribed by the person making the return, and the administering and taking of the oath shall be attested by the receiver of tax returns * * *.' ¹ (Emphasis supplied.)

We have examined the record in the Seagraves case and find that no copy of the return was sent up from the trial court. It was abstracted in the briefing of the evidence to show the items of property listed and the values placed thereon under the headings 'City Assessment' and 'County Assessment,' as is authorized to be done by Code Ann. § 6-801. When the return was exhibited to Mr. Seagraves for identification he testified: 'That is my signature, it looks like it * * * This is the return that I make to the tax assessors.' At the conclusion of the brief of the evidence it was recited: 'Thereupon the plaintiff tendered in evidence the tax records for 1940 showing a return made by L. J. Seagraves, being a record of his return of Fulton County taxes * * * signed by L. J. Seagraves, dated March 6, 1940. The property listed on said return was as follows: (then appears a list of the items, together with the values in the columns, as stated above.)'

Since the taxpayer was required to make oath to the return (Code § 92-6216), in the absence of any showing to the contrary--and there was no such showing in that record--it must be presumed that he did so. Clements v. Hollingsworth, 205 Ga. 153(5), 52 S.E.2d 465. Since the statute requires that the receiver of the return administer the oath to the taxpayer, for the same reason it must be presumed that he did so, Todd v. State, 205 Ga. 363, 53 S.E.2d 906, and especially so since it appears that the tax return was made in 1940. Code § 38-114. We must assume that the ruling in Seagraves was made in the light of those presumptions.

Turning now to the record in this case, we find the three lots, though lying adjacent and in what might otherwise be considered as one tract, were listed on two separate returns. Certified photostatic copies of the two returns are in the record. Each of them appears to have been prepared on a typewriter or machine of some kind so that the name of the taxpayer is listed at the upper left and the items of real estate are listed below with the values of each item set opposite them under columns headed 'City Assessment' and 'County Assessment'--just as was the case in Seagraves. The listings of each item of property and of the values in these columns was done with a typewriter or machine. Each carries on its face the legend 'data processing (ver) #3.' When they were exhibited to Mr. Gruber he testified that he signed the returns but that he did not place any values on any of the items of property shown or listed--that this was done in advance by the people in the tax office, and that in making the returns each year for his wife he had never at any time since the purchsae of these items placed any values on them.

Printed at the bottom of each of the returns is the form of oath prescribed by Code Ann. § 92-6216, and at the end of it is further printed 'sworn to and subscribed before me, Jack L. Camp, Tax Comm.' Following the affidavit form appears the signature of Mr. Gruber, but there is no attestation on either of the returns by Jack L. Camp. In the place for attestation on one of them is the notation 'Bb,' while the other is entirely blank.

If there were evidence in the record that the oath was in fact administered to Mr. Gruber by Jack L. Camp, the tax commissioner, the attestation might have been affixed nunc pro tunc. Veal v. Perkerson, 47 Ga. 92. But there is no evidence in this record that Mr. Camp or any person authorized by law administered any oath or that Mr. Gruber did more than sign the returns, and the returns themselves show a lack of any attestation, a lack of any certificate of the officer before whom the writing was sworn to--which is the jurat--and thus the lack of any valid jurat.

If it be said that the entry or notation on one of the returns 'Bb' indicates that the oath may have been administered by somebody, it must be observed that the statute requires that it be done before the tax commissioner, since Mr. Gruber was a male resident of Fulton County. Moreover, nothing appears to indicate that 'Bb' attested the return in any official capacity, or whether he was a deputy commissioner, an assistant, a mere employee, or a wayfaring stranger. The photostatic copies of the returns are certified to be true and correct by the tax commissioner, Jack L. Camp. He is not 'Bb,' and the handwriting of the entry or notation, if it has any significance--which we do not think it does--is obviously not that of Jack L. Camp.

'Powers of all public officers are defined by law, and all persons must take notice thereof.' Code § 89-903; Morris Plan Bank of Georgia v. Simmons, 201 Ga. 157, 171, 39 S.E.2d 166. Since it is required by Code Ann. § 92-6216 that the oath be administered by and the affidavit subscribed before the tax commissioner nobody else had authority to perform that function, and the attempted performance...