Richmond County v. Steed

• Decision Date: 15 May 1920
• Docket Number: 1636.
• Citation: 103 S.E. 253,150 Ga. 229
• Parties: RICHMOND COUNTY ET AL. v. STEED, TAX RECEIVER, ET AL.
• Court: Georgia Supreme Court

103 S.E. 253

150 Ga. 229

RICHMOND COUNTY ET AL. v. STEED, TAX RECEIVER, ET AL.

No. 1636.

Supreme Court of Georgia

May 15, 1920

Syllabus by the Court.

A tax receiver may, in a proper case, be compelled by mandamus to give the notice as provided under the Civil Code 1910, § 1057, and to assess the property of a delinquent taxpayer as provided under the Civil Code 1910, § 1059.

In such a case the delinquent taxpayer is not, as a general rule either a necessary or a proper party defendant.

Under section 5443 of the Civil Code 1910, mandamus will not be granted when it is manifest that the writ would for any cause be nugatory or fruitless; nor will it be granted on a mere suspicion or fear, before a refusal to act or a wrongful act done.

(a) It was not in this case erroneous to dismiss the proceeding for mandamus, and to tax the cost of the proceeding against the relator.

Additional Syllabus by Editorial Staff.

Ordinarily the writ of mandamus is a remedy for official inaction, and where the act required to be done is imposed by law and is peremptory and absolute, and hence merely ministerial, the relator has a clear legal right to the writ and is without other specific remedy.

Where the act required to be done involves the exercise of some official discretion and judgment, the writ may properly command him to act, or may set him in motion, but will not further interfere with his action or direct him to act in any specific manner, in view of Civ. Code 1910, § 5441.

Technically speaking, the only proper and necessary party defendant in a mandamus case is the respondent, though any person may be made a defendant who has an interest in the right sought to be enforced which will be collaterally determined by the judgment if rendered as prayed.

Error from Superior Court, Richmond County; H. C. Hammond, Judge.

Mandamus by Richmond County against C. A. Steed, Tax Receiver, with intervention by the State of Georgia, which was made a party plaintiff with petition to make E. H. Callaway, as executor of J. B. White, deceased, a party. Demurrer of the executor to the petition sustained and petition for mandamus dismissed at petitioners' costs, and they bring error. Affirmed.

Where county and state, in mandamus against a tax receiver, showed an expenditure of $250 in going into another state and taking testimony there, yet, where it was not shown that the tax receiver had positively refused to require an executor to make a return, under Civ.Code 1910, § 1057, or grossly abused his discretion in not requiring the return, the taxing of the costs against petitioners was not error.

The will of J. B. White, in which Judge E. H. Callaway of Richmond county, Ga., was named as executor, was probated in the court of ordinary of Richmond county in 1917, and letters testamentary were duly issued to the executor named. The executor filed an inventory of the estate, from which it appeared that the testator at the time of his death owned more than a million dollars worth of stocks and bonds in foreign corporations, and other choses in action. These securities were in the possession of New York bankers. The commissioners of roads and revenues of Richmond county ascertained that none of this personal property had ever been returned for taxation in Richmond county. This information was brought to the attention of the tax receiver, and he was requested to issue the statutory notice to the executor of the estate, demanding that he make a return of said property for the years 1911 to 1917, inclusive. On June 4, 1918, the tax receiver issued the statutory notice. Before the expiration of the 20 days in which the executor had, under the statute, to make the return demanded, the receiver withdrew the notice. In December, 1918, Richmond county filed a petition for mandamus to require the tax receiver to assess said property for taxation for the years named, and upon the best information obtainable, alleging, in addition to the foregoing facts, that the testator was a resident of and domiciled in Richmond county, Ga., at the time of his death and that the tax receiver in withdrawing the statutory notice aforesaid was acting against the interest of the county and in the interest of the estate. Subsequently the state of Georgia intervened and was made a party plaintiff in the mandamus proceeding. In response to the mandamus nisi, the tax receiver demurred and answered. In his answer he averred that the testator lived in Richmond county in 1910, but that he went abroad during that year and never returned to the state of Georgia, dying in Italy in 1917. He admitted that the testator owned at the time of his death, as shown by the inventory and appraisement, the securities aforesaid. He alleged that he did not know, and that he had no satisfactory evidence, that the testator owned the said securities from 1911 to 1917, inclusive, and that it was his official duty, as he conceived it, to act upon reasonably exact knowledge or information; that he did not know whether said securities were liable to taxation by Richmond county, in the circumstances aforesaid, and, if taxable, the value thereof.

Subsequently Richmond county and the state of Georgia filed a petition in which it was alleged that the executor of J. B. White held said securities and was vitally interested in the issues involved; that said executor had influenced and prevented the tax receiver from assessing said property, and by his interference with the said receiver had made himself a party in fact to the mandamus proceeding; and prayed that he be made a party upon the record, and be required to raise the question of the taxability of said property and the value thereof in the mandamus proceeding against the receiver. To this petition the executor demurred, upon the ground that he was neither a necessary nor a proper party defendant in said proceeding. Thereafter the tax receiver amended his answer and alleged that he had, on June 10, 1919, issued a second notice to the executor, demanding a return of the aforesaid securities for the years 1911 to 1917, inclusive, and that in response to this notice the executor had filed a return. The relators filed an amendment to the petition for mandamus, setting out in detail the information which had been furnished the receiver, and alleging that the returns as made by the executor were wholly inadequate and did not include the property sought to be taxed. They prayed that the returns made by the executor be rejected, and that the receiver be compelled to assess said property as required by law.

On June 14, 1919, the case came on before the judge for a hearing upon the pleadings, and the judge orally announced that he would not issue a mandamus absolute, but that he would retain jurisdiction of the case in order to permit counsel for the relators to take the depositions of the New York bankers. Certain depositions were taken, and in substance they disclosed that the testator owned, during the years 1911 to 1917, inclusive, stocks and bonds of the value of one and a quarter million dollars. This evidence was submitted to the tax receiver, and on July 28, 1919, he rejected the returns as made by the executor, and assessed said stocks and bonds in accordance with such evidence for the years in question. Thereupon the receiver, by amendment to his answer, averred that he had so assessed the property, and prayed that the mandamus absolute be denied. The relators by amendment prayed that the assessment be confirmed, and that the same be held binding upon the executor, and that the cost of the proceeding, including an item of $250 as expense incurred by counsel in taking the depositions of the New York bankers, be taxed against the receiver.

On July 29, 1919, the judge passed an order sustaining the demurrer of the executor to the petition and refusing to make him a party defendant. At the final hearing before the judge on August 1, 1919, the court refused the mandamus absolute and dismissed the petition at the cost of the relators. The county of Richmond and the state of Georgia excepted, assigning error in the judgment sustaining the demurrer of the executor, in the judgment refusing to make the rule absolute and to confirm the assessment made by the receiver, and in taxing the cost against the relators.

Pierce Bros., A. L. Franklin, and Wm. K. Miller, all of Augusta, for plaintiffs in error.

Cumming & Harper and Callaway & Howard, all of Augusta, for defendants in error.

GEORGE J. (after stating the facts as...