Hoke v. City of Atlanta

• Decision Date: 25 April 1899
• Citation: 33 S.E. 412,107 Ga. 416
• Parties: HOKE et al. v. CITY OF ATLANTA.
• Court: Georgia Supreme Court

33 S.E. 412

107 Ga. 416

HOKE et al. v. CITY OF ATLANTA.

Supreme Court of Georgia

April 25, 1899

Syllabus by the Court.

1. A voluntary payment of an illegal assessment by a municipal corporation upon a property owner for a street improvement cannot, though made under protest, be recovered.

2. When such an assessment is paid merely to prevent a levy upon realty, it cannot be said that the payment was made under duress, and was therefore involuntary, the more especially when a complete and easily available legal remedy to prevent the levy was open to the landowner.

Error from superior court, Fulton county; J. H. Lumpkin, Judge.

Action by W. A. and Sallie B. Hoke against the city of Atlanta. Judgment for defendant, and plaintiffs brings error. Affirmed.

H. A Alexander, for plaintiffs in error.

J. A Anderson and J. T. Pendleton, for defendant in error.

LUMPKIN P.J.

The petition of W. A. and Sallie B. Hoke against the city of Atlanta made, in substance, the following case: They are the owners of a lot in the city, fronting on Butler street. On February 25, 1895, a municipal ordinance was adopted providing for the laying of a payment of vitrified brick on the portion of that street on which petitioners' property abuts. This pavement was subsequently laid. Under the provisions of another ordinance adopted September 3, 1895 the abutting property owners, including petitioners, were assessed for specified portions of the cost of this paving. These ordinances (for reasons alleged) were void, and afforded no lawful basis for collecting from petitioners the amount assessed against them as their proportion of the expenses incurred in making the improvement. On October 30, 1895, other owners of real estate fronting on this portion of Butler street filed an equitable petition, attacking the above-mentioned ordinances, and praying that the city be enjoined from collecting from the plaintiffs therein any assessment on account of such paving. This action, after a decision thereon by the supreme court at the March term, 1896, thereof, finally resulted in the granting of a permanent injunction as prayed for. While this proceeding was pending, petitioners were notified of the assessment against them for their alleged proportion of the cost of the paving, and thereupon employed an attorney at law to represent them. He did not at once make them parties to the pending litigation; his delay in so doing being caused by an assurance given to him by a deputy city marshal "that the marshal had stopped all proceedings in connection with the contested assessment, and that the collection of the same would not be attempted from any one, whether their names were in the bill or not, until the question was finally settled." Acting on this assurance, petitioners' attorney waited until the 10th of January, 1896, before filing an intervention in their behalf, "believing that no further effort of collection would be made." In December, 1895, the officers of the city changed their plans, and proceeded to push for collection the paving bills against those who had not become parties to the then pending litigation. On the 10th of that month, without the knowledge of petitioners' attorney, an execution against their property was issued and delivered to the city marshal, who thereupon notified petitioners of this fact by letter, therein informing them that, unless the execution was paid within five days, their property would be advertised and sold. "Petitioners, upon receipt of this letter, conceiving that in the employment of an attorney and in appealing to the law they had availed themselves of all the protection thereby afforded, and believing that these steps had actually been taken by the said attorney, became exceedingly perplexed and alarmed at the threatened sale of their property; and believing that the law was unable to help them, and seeing no other means of relief, hastened to the city of Atlanta, from their home in North Carolina, and, on the 23d day of December, 1895, paid over to the city marshal the amount of the pretended claim, to wit, $163.65, accompanying the act with a protest, and taking from said officer a written receipt on which the fact of such protest was expressly entered. *** Petitioners say that the issuance of an execution against their property as aforesaid, and without the least authority, was a mere trespass, working irreparable damage to, and casting a cloud upon, said property. *** An illegality could not, moreover, have been employed until a levy had been made by the marshal, and said levy would have clouded the title to their property, and impaired their credit. Said remedy was therefore inadequate to the purpose. Petitioners say that they paid over said sum in the belief that they had appealed to law, and that the law had proven powerless to stop the levy and sale, and that this belief was the result of the statements made by the officers of said city to the attorney of petitioners." They were actually made parties to the petition for injunction before the final judgment of the superior court was rendered. After the granting of the permanent injunction, they applied to the city for a return of the money they had...