Scott v. Mayor and Council of Mount Airy

• Decision Date: 16 September 1938
• Docket Number: 12320.
• Citation: 198 S.E. 693,186 Ga. 652
• Parties: SCOTT v. MAYOR AND COUNCIL OF MOUNT AIRY et al.
• Court: Georgia Supreme Court

198 S.E. 693

186 Ga. 652

SCOTT v. MAYOR AND COUNCIL OF MOUNT AIRY et al.

No. 12320.

Supreme Court of Georgia

September 16, 1938

Error from Superior Court, Habersham County; B. P. Gaillard, Jr. Judge.

Proceeding by R. C. Scott against the Mayor and Council of Mount Airy and others to enjoin the enforcement of an allegedly invalid municipal tax execution. Judgment dismissing the action on general demurrer, and petitioner brings error.

Affirmed.

R. C Scott, of Cornelia, for plaintiff in error.

Hamilton Kimzey and Herbert B. Kimzey, both of Cornelia, for defendants in error.

Syllabus OPINION

JENKINS Justice.

1. While injunction is a proper remedy for resisting the enforcement of an invalid municipal tax execution if there is no provision in the city charter for testing the validity by affidavit of illegality (City of Atlanta v. Jacobs, 125 Ga. 523[2], 528, 54 S.E. 534), yet equity will not interfere if such a provision does exist. Social Circle Cotton Mill Co. v. Social Circle, 163 Ga. 465, 467, 136 S.E. 432; Rice v. Macon, 117 Ga 401, 402, 43 S.E. 773, and cit.

2. The Code, § 39-1006, makes it the duty of a levying officer, who receives a proper affidavit of illegality, to return it with the papers 'to the next term of the court from which the execution issued.' § 24-1419 provides that 'when an issue is made by an affidavit of illegality and returned to any justice court, it shall be tried at the next term of said court after said illegality has been returned to said court for five days.' Even 'where an execution issues from a justice court and is levied upon land, and an affidavit of illegality is filed, it is the duty of the levying officer to return the papers to the justice court for trial,' rather than to the superior court, which is without jurisdiction in such a case. Padgett v. Waters, 4 Ga.App. 306(2), 61 S.E. 293. The constitution limiting the jurisdiction of justices' courts to cases 'when the principal sum does not exceed $100' (Const. art. 6, § 7, par. 2, Code, § 2-3502), affidavits of illegality, filed to the levy of ordinary executions for larger amounts, would be returnable to other courts having jurisdiction. There being no general statute as to the filing and return of affidavits of illegality to tax executions, and no authority for the officer issuing such an execution to here and determine the controversy (Webb v. Newsome, 138 Ga. 342, 345, 75 S.E. 106), where a municipal charter authorizes an affidavit of illegality, the levying officer returns the papers to the proper court specified in the charter provision. See Vanduzer v. Irvin, 138 Ga. 524, 525, 526, 75 S.E. 649.

The charter of the Town of Mt. Airy provides that 'whenever any execution issued by the town authorities of Mt. Airy shall be levied upon any property, a claim of illegality may be filed under the same rules and regulations that govern claims and illegalities to justice court fi. fas., and shall be tried in same manner.' Ga.Laws 1921, p. 1040, § 23. Since laws passed to prevent delay and expense in the administration of justice or to give remedies not previously existing are remedial in nature, and as such are to be liberally construed (Carey v. Giles, 9 Ga. 253[6] 259; Price v. Bradford, 5 Ga. 364, 368; Collins v. Taylor, 128 Ga. 789, 790, ...