Oxford v. Shuman

• Decision Date: 11 April 1962
• Docket Number: No. 3,Nos. 39337,39353,s. 39337,3
• Citation: 126 S.E.2d 522,106 Ga.App. 73
• Parties: Dixon OXFORD, Commissioner, etc. v. J. W. SHUMAN. J. W. SHUMAN v. Dixon OXFORD, Commissioner, etc
• Court: Georgia Court of Appeals

Page 522

126 S.E.2d 522

106 Ga.App. 73

Dixon OXFORD, Commissioner, etc. v. J. W. SHUMAN.

J. W. SHUMAN v. Dixon OXFORD, Commissioner, etc.

Nos. 39337, 39353.

Court of Appeals of Georgia, Division No. 3.

April 11, 1962.

Rehearing Denied May 17, 1962.

Syllabus by the Court.

1. Where some of the questions presented in a bill of exceptions are properly before this court, a motion to dismiss the entire bill of exceptions will not lie.

2. (a) A suit by a taxpayer is not an appeal from an assessment merely because the taxpayer alleges various errors in a 'purported assessment.'

(b) A general demurrer will not be sustained against a taxpayer's suit for refund for failure of the taxpayer to allege his 'true and correct' tax liability for the period in question where the requirements of the general refund statute are met.

(c) Code § 20-1007 does not bar this suit for refund.

3. A special demurrer filed too late under Code § 81-301, as amended, is properly overruled.

4. It is error to sustain a special demurrer which is not free from imperfections.

5. (a) Demurrers not renewed after a material amendment become extinct and nugatory.

(b) Evidence is not the proper subject of inquiry in rulings on the pleadings.

Eugene Cook, Atty. Gen., Louis F. McDonald, Asst. Atty. Gen., John A. Blackmon, Deputy Asst. Atty. Gen., Atlanta, for plaintiffs in error.

Louis A. Thompson, Savannah, for defendants in error.

EBERHARDT, Judge.

Jack W. Shuman, doing business under a number of trade names, filed suit against Dixon Oxford as State Revenue Commissioner for alleged overpayment of sales and use taxes. Shuman will be referred to as taxpayer and Oxford as the Commissioner. The procedural details of the case and the allegations of the petition appear more fully in the opinion. In the main bill of exceptions, the Commmissioner assigns error on the overruling of his general and special demurrers to taxpayer's petition as amended. Taxpayer seeks in the cross-bill review of several rulings, viz., (1) sustaining one of the Commissioner's special demurrers and the subsequent striking of the paragraph to which the demurrer related; (2) overruling his general and special demurrers to the Commissioner's answer, and (3) overruling his motion to strike the Commissioner's answer and enter a default judgment in taxpayer's favor.

1. The defendant in error (taxpayer) in Case No. 39337 has filed a motion to dismiss the writ of error on a number of grounds, viz., (a) the plaintiff in error failed to renew in writing his demurrers, both general and special; (b) the 'final' set of demurrers has never been passed on by the trial court and the appeal is premature; (c) error is not assigned on the overruling of the 'renewed' demurrers; (d) in orally renewing the demurrers, it was not specified which of the two previous sets of demurrer was renewed; and (e) the 'renewal' did not specify which demurrers, general, special or both, were renewed.

At least as to the Commissioner's general demurrer, we find that taxpayer's contentions are without merit. When a petition to which a general demurrer is addressed is materially amended there is, of course, a necessity that the demurrer to the petition, as amended, be renewed or reinsisted upon, or it will be deemed to have been abandoned. National Surety Corp. v. Hunt, 105 Ga.App. 101, 123 S.E.2d 558, and cases there cited. While a general demurrer must be in writing and filed within the time provided in Code § 81-301, a motion in the nature of a general demurrer to strike or to dismiss may be made orally at any time prior to verdict, Gibbs v. Forrester, 204 Ga. 545, 548(2), 50 S.E.2d 318; McFarland v. Business Men's Assur. Co., 105 Ga.App. 209(6), 124 S.E.2d 432, and, since this is true, it must follow that a general demurrer may be renewed orally. Pollock v. City of Albany, 88 Ga.App. 737(1), 77 S.E.2d 579. A special demurrer must always be in writing. Martin v. Gurley, 74 Ga.App. 642(1), 40 S.E.2d 787. ¹ Since this is true it would seem to follow that if that portion of the pleading to which a special demurrer is directed is subsequently amended it would be necessary to renew the demurrer in writing in order to invoke any ruling thereon. But see on this question, Thornton & Warren v. Cordell, 8 Ga.App. 588(2), 70 S.E. 17; Chandler v. Pennington, 89 Ga.App. 676(5), 80 S.E.2d 843. Compare Atlanta & West Point R. Co. v. McDonald, 88 Ga.App. 515, 516(1), 76 S.E.2d 825 and City of Manchester v. Beavers, 38 Ga.App. 337, 338(1), 144 S.E. 11 with the above cases.

It is unnecessary, however, that we here make any ruling on this question since the amendment to which a number of the demurrers were directed was withdrawn and all demurrers addressed to the paragraph of the petition to which the amendment related have been expressly abandoned. Remaining special demurrers directed to portions of the petition unaffected by the amendment do not have to be renewed merely because some other part of the petition is subsequently amended. They stand until the portion of the pleading to which they are directed is changed by amendment, or until they are otherwise disposed of. Any other ruling would simply result in an unnecessary encumbering of the record. Consequently, as to special demurrers occupying this posture it was not necessary that after plaintiff amended there be any renewal thereof, either orally or in writing, in order to obtain a ruling thereon. Moreover, the bill of exceptions recites that the demurrers were renewed, and this recitation, when approved by the trial court's certificate, is binding. Code § 6-806, as amended. Madison v. Montgomery, 206 Ga. 199, 205, 56 S.E.2d 292; Spear v. State, 17 Ga.App. 540(1), 87 S.E. 826. Further, where a bill of exceptions presents several questions for adjudication and some of them are properly here, the motion to dismiss the writ of error must be denied. Hill v. State, 118 Ga. 21(1), 44 S.E. 820; Goodman v. Mitcham, 160 Ga. 546(1), 128 S.E. 793; Wade v. Penn, 88 Ga.App. 20(1), 75 S.E.2d 845.

2. The Commissioner urges his general demurrer on three points: (a) that this suit is, in reality, an appeal from an assessment; (b) that if this is a suit for refund taxpayer must set out his 'true and correct' tax liability for the period in issue; and (c) that Code § 20-1007 bars this suit.

(a) If this suit be held an appeal from an assessment, it would be barred by the thirty-day limitation on appeals in the act of 1937-38, as amended (Code Ann. § 92-8446). However, by the terms of this Code section suits for refund are specifically excepted from the limitation. Taxpayer denominates the suit as one for refund, but what a pleading is called by the pleader is not controlling. See, Keith v. Darby, 104 Ga.App. 624(3), 122 S.E.2d 463 supra; Shaheen v. Kiker, 105 Ga.App. 692(2), 125 S.E.2d 541; Leverett, Hall & Christopher, Ga.Procedure and Practice § 9-5, p. 208.

The main basis for the Commissioner's contention that this is an appeal is that the petition alleges numerous errors in the 'purported assessment.' An exhibit is attached to the petition and it is labeled 'Auditor's report of examination (Assessment) September 17, 1956.' It is alleged that the figure shown in this exhibit ($38,215.81) included net tax due, interest and penalties and that it was paid on the date of its presentation to taxpayer by one of the Commissioner's agents. Whether or not there was an 'assessment' in the technical sense of the word ² the taxpayer has paid his money, which he says was illegally exacted of him, and now wants it back. Once the money has been paid, there is no 'assessment' from which to appeal. We construe this suit not to be an appeal from an assessment but a suit for refund. Even if this were not true, the Sales Tax Act specifically provides that 'Upon any claim of illegal assessment and collection the taxpayer shall have his remedy under Code of Georgia, Section 92-8445, et seq. [appeal from the Commissioner's order], and also shall be allowed to file claims for refund in the manner authorized by the general law.' Ga.L.1951, p. 382 (Code Ann. § 92-3434a) (Emphasis added.) Thus a suit for refund is authorized and that is what taxpayer here has filed. 'A petition that sets forth a valid cause of action on any theory is not subject to general demurrer.' Griffith v. Newman, 217 Ga. 533(1), 123 S.E.2d 723.

(b) The procedure for obtaining refunds from the Commissioner is governed by Ga.Laws 1937-38, Ex.Sess., p. 94, as amended (Code Ann. § 92-8436(b). The appropriate portion of that law reads, 'In any case in which it shall be determined that an erroneous or illegal collection of tax or license has been mady by the Commissioner, the taxpayer from whom such tax or license was collected may, at any time within three years after the date of the payment of same to the State Revenue Commissioner, file a claim for refund with the said Commissioner in writing and in such from and containing such information as the Commissioner may require, to include a summary statement of the grounds upon which the taxpayer relies * * *. The Commissioner or his delegate shall consider information contained in taxpayer's claims for refund and such other information as may be available and shall approve or disapprove the taxpayer's claim and notify such taxpayer of his action. * * * Provided, further, that any taxpayer whose claim for refund is denied by the Commissioner or his delegate * * * shall have the right to sue for refund in the superior court of the county of the residence of the taxpayer * * *. No suit or proceeding for the recovery of refund hereunder shall be begun before the expiration of one year from the date of filing the claim for refund unless the State Revenue Commissioner or his delegate renders a decision thereon within that time, nor after the pxpiration of two years from the date said claim is denied * * *.'

Here the date of payment was September 17, 1956. Within three years (July...