National Mortg. Corp. v. Suttles

• Citation: 22 S.E.2d 386,194 Ga. 768
• Decision Date: 24 September 1942
• Docket Number: 14180.
• Parties: NATIONAL MORTGAGE CORPORATION v. SUTTLES, Tax Collector, et al.
• Court: Georgia Supreme Court

22 S.E.2d 386

194 Ga. 768

NATIONAL MORTGAGE CORPORATION v. SUTTLES, Tax Collector, et al.

No. 14180.

Supreme Court of Georgia

September 24, 1942

Rehearing Denied Oct. 23, 1942.

John P. Stewart, of Atlanta, for plaintiff in error.

Ralph H. Pharr, W. S. Northcutt, and E. H. Sheats, all of Atlanta for defendants in error.

Wm Wallace Lyons, J. L. R. Boyd, Granger Hansell, and W. O DuVall, all of Atlanta, and J. A. McCurdy, of Decatur, for parties at interest, not parties to record.

Syllabus Opinion by the Court.

ATKINSON, President Justice.

1. '(a) According to previous decisions by this court construing Georgia statutes, a promissory note executed by a resident of this State, but owned by a non-resident and held by the latter at his domicile out of this State, is to be taxed here only if it is derived from or is used as an incident of property owned or of a business conducted by the non-resident or his agent in Georgia; and this is true although the note may be secured by a mortgage on land situated in this State. Collins v. Miller, 43 Ga. 336; Carhart v. Paramore, 44 Ga. 262; Cary v. Edmondson, 44 Ga. 651; Armour Packing Co. v. Savannah, 115 Ga. 140, 41 S.E. 237; Armour Packing Co. v. Augusta, 118 Ga. 552, 45 S.E. 424, 98 Am.St.Rep. 128; Armour Packing Co. v. Clark, 124 Ga. 369, 52 S.E. 145; Columbus Mutual Life Insurance Co. v. Gullatt, 189 Ga. 747, 8 S.E.2d 38(b) Where notes and mortgages are so owned and held by a non-resident, the maintenance of an office and agency in this State for the purpose merely of protecting the security and ultimate collection or liquidation of the indebtedness, the papers themselves being sent into this State only when needed for cancellation, renewal, or foreclosure, would not be using them in this State, within the rule enunciated. Collins v. Miller, 43 Ga. 336, supra; Cary v. Edmondson, 44 Ga. 651, supra.' Suttles v. Associated Mortgage Companies, 193 Ga. 78, 17 S.E.2d 272, 274.

2. The undisputed facts in the instant case show that the property sought to be taxed was acquired and held by a nonresident under a plan and arrangement similar in principle to that which obtained in the above-cited case. The nonresident owner did not maintain an office or agency in the State, but would return the securities to separate and independent agencies in this State for the purpose merely of protecting the securities and ultimate collection or liquidation or renewal thereof. The method of handling the securities was not such as to become 'an integral part of some local business conducted by him or his agent,' as was ruled in Suttles v. Northwestern Mutual Life Insurance Co., 193 Ga. 495(2, a), 19 S.E.2d 396, 398, 21 S.E.2d 695. In the circumstances a judgment by the court without a jury was demanded for the plaintiff nonresident corporation against whom the tax was sought to be assessed. The court erred in denying a new trial. The controlling question in the case is as to taxability of the property; and under the above ruling it is unnecessary to deal with the special grounds of the motion for a new trial.

Judgment reversed.

All the Justices concur.

On Motion for Rehearing.

BELL Presiding Justice, and GRICE, Justice.

The decision in this case is characteristic of many which bear the name of the same learned but now lamented Justice, being concise and to the point, with only brief discussion of the law or the facts, as was true of numerous others prepared by him, where the rules of law were considered well settled and the facts clearly fell within stated principles. The length of an opinion is no criterion of the amount of care, research, and study spent on the consideration of a particular case. Whether an opinion be brief or extended is usually a matter of judicial taste, habit, or temperament while it may of course depend also on the nature of the questions involved, and other matters. The Justice who thus spoke for the court having now departed this life, if anything is to be said on motion for rehearing, it will have to be said through another or others. In view of certain contentions that have been presented therein, perhaps some comment should be made in response to the motion, although it is deemed unnecessary now, as on original consideration, to discuss the law or the facts more than was then done, with the exception of a few brief observations, prompted in part by what appears to be a misapprehension on the part of counsel.

The motion for rehearing and the briefs filed in support of it indicate a rather positive conviction in the minds of counsel that we have in this case, either unwittingly or intentionally, departed from the doctrine recently laid down in Suttles v. Northwestern Mutual Life Insurance Co., 193 Ga. 495, 19 S.E.2d 396; 21 S.E.2d 695. Nothing of the kind is true, for the entire court, including the two Justices who are now speaking for the court, and who, because of disqualifications, were the only regular members of the court who presided in the Northwestern Mutual case, concluded deliberately that the two cases are essentially distinguishable, and that the facts of the instant record do not make the credits taxable under any principle recognized in the Northwestern Mutual case. It may be further said, however, that since the cases are substantially dissimilar, it is unnecessary that the other members of the court should determine at this time whether they will accept the reasoning of that decision in its entirety. In that case it was held that the evidence demanded a finding that the company, through a resident agent, had conducted a loan business in Georgia, and that such being the case the credits were taxable in Georgia, notwithstanding the rigid limitations on the agent's authority.

In the instant case there was a like assessment against credits arising from loans. A different conclusion was reached however, on the theory that under the evidence in the present case no resident loan agency was shown. We carefully examined the case as to this question upon original consideration, and the motion for a rehearing does not bring to light any fact that was overlooked. In the case now before us it was the local corporation itself that engaged in the loan business in Georgia, and not the nonresident company to which it transferred its paper after the loans were made. It is true that these companies had a written contract governing the manner in which their dealings would be carried on; but the contract did not show that the former was the agent of the latter, nor was there any such extrinsic evidence as would justify the conclusion that the written agreement was colorable, or that the relation of the parties was not what it purported to be, to wit: that of buyer and seller of commercial paper together with the...