Thompson v. Continental Gin Co.

• Decision Date: 11 April 1946
• Docket Number: 31206.
• Citation: 37 S.E.2d 819,73 Ga.App. 694
• Parties: THOMPSON v. CONTINENTAL GIN CO.
• Court: Georgia Court of Appeals

37 S.E.2d 819

73 Ga.App. 694

THOMPSON v. CONTINENTAL GIN CO.

No. 31206.

Court of Appeals of Georgia, Division No. 2.

April 11, 1946

SYLLABUS BY THE COURT.

1. While the State can not be sued without its consent, and a judgment taken against it without its consent to the suit is a nullity, the State can expressly consent to be sued.

(a) Where the State consents to be sued and voluntarily submits the issues involved to one of its courts having jurisdiction of the parties and of the subject matter, the judgment rendered is conclusive and binding on the State with respect to the matter litigated.

2. Where a general demurrer to a petition by a taxpayer against the State for refund of certain taxes illegally collected from him is overruled by the superior court, and that judgment has been reviewed by the Court of Appeals in a decision holding that the petition set out a cause of action for the sum sued for, that the action was one against the State and that the State, by the act of January 3, 1938, had consented to be sued for the items set forth in the petition, the subsequent rendition by the Supreme Court of a decision in another case, the effect of which is to hold that the act of January 3, 1938, did not authorize an action for refund of taxes paid before its effective date, does not render the decision of the Court of Appeals invalid or authorize or require the superior court to enter a judgment in the case different from that adjudged by the Court of Appeals, although one of the items set out in the petition was alleged to have been collected prior to the effective date of the act of January 3, 1938.

(a) This court having by solemn judgment settled the issue between the parties as to whether or not the State

had consented to be sued for the items set out in the plaintiff's petition, after a subsequent trial in the superior court and a verdict and judgment for the plaintiff which were not appealed from by the defendant, this issue cannot be relitigated between the same parties by a motion of the defendant to set aside and vacate a portion of the verdict and judgment against it upon the ground that the State had not consented to be sued for one of the items set out in the petition; and the trial court did not err in sustaining the plaintiff's plea of res judicata and in dismissing the defendant's motion to set aside, amend, and vacate a portion of the verdict and judgment against it.

The Continental Gin Company brought suit in Fulton superior court against T. Grady Head, as state revenue commissioner, seeking to recover the sum of $10,300 alleged to have been illegally and erroneously collected by the defendant from the plaintiff as occupational taxes for the years 1932 to 1935 and 1937 to 1940. The petition set out the items which constituted the total amount sued for, and the date on which these items were paid to the defendant. The only portion of the sum sued for now in dispute is the sum of $1,300, which the petition alleged was paid to the defendant on March 1, 1937. To the petition of the plaintiff seeking to recover the sum of $10,300 as refund on excess occupational taxes paid by the plaintiff, the defendant filed a general demurrer, which was overruled by the superior court. To this judgment overruling the demurrer, the defendant, through J. M. Forrester, as commissioner of revenue and successor in office to T. Grady Head, filed a bill of exceptions and brought the case to this court for determination.

This court held that the petition set out a cause of action for the amount sued for, $10,300, and that the action was one against the State and was authorized under § 34(b) of the act of January 3, 1938, Code, Ann.Supp. 92-8436 Ga.L. 1937-38, Ex.Sess., 77, 95. Forrester v. Continental Gin Company, 67 Ga.App. 119, 19 S.E.2d 807. The defendant's petition for a writ of certiorari was denied by the Supreme Court on May 19, 1942.

On the trial of the case in the superior court, the jury, on January 25, 1943, returned a verdict in favor of the plaintiff for $10,300, and a judgment was duly entered thereon. There was no appeal from this verdict and judgment.

On January 15, 1946, M. E. Thompson, as state revenue commissioner and successor in office to T. Grady Head and to J. M. Forrester, filed a petition in the superior court of Fulton County to vacate, amend, and set aside so much of the verdict and judgment entered in this case on January 25 1943, as related to the sum of $1,300, and interest thereon upon the following grounds: That the petition of the plaintiff alleged the sum of $1,300 was paid as taxes on March 1, 1937; that on September 15, 1942, the Supreme Court decided the case of Eibel v. Forrester, 194 Ga. 439, 22 S.E.2d 96, wherein it was held that the statute authorizing the taxpayer to bring an action to recover taxes erroneously or illegally collected from him (Ga.L.1937-38 Ex. Sess. 77, 94, Code, Ann.Supp. 92-8436) did not authorize an action for the refund of taxes erroneously or illegally collected prior to the effective date of that act, March 1, 1938; that this act made no appropriation for and did not authorize the refund of taxes erroneously paid or collected prior to its effective date; that the State had not consented to be sued for refund of taxes erroneously or illegally collected prior to March 1, 1938, and the judgment of the superior court, in so far as it related to the refund of $1,300 and interest thereon, was void because the superior court was without jurisdiction to render a judgment for this amount, which the plaintiff's petition alleged was paid on March 1, 1937. The prayers of the motion were, in part, that so much of the verdict and judgment in this case as provided for the refund of $1,300, and interest thereon, be vacated, amended, and set aside.

To this motion, the plaintiff filed a plea of res judicata, in which it alleged that the general demurrer of the defendant to the petition in the original suit was overruled by the trial court on October 16, 1941, and that said judgment was affirmed by the Court of Appeals of Georgia on March 20, 1942, and a rehearing denied by said court on April 1, 1942, and that an application to the Supreme Court for certiorari was denied; that upon the return of the case to the trial court, the same was tried before a court and a jury, at which time a verdict was rendered in favor of the plaintiff for the principal sum of $10,300, and interest thereon, which principal sum included the item of $1,300 that the defendant now seeks to have set aside; that there was no appeal from the verdict and judgment of the superior court and, the defendant having paid the sum of $9,000 on the judgment, was bound, under the law, to pay the full amount provided for in the verdict and judgment.

It was stipulated and agreed by the parties for the trial judge to decide any question of fact, with regard to the defendant's plea of res judicata, without the intervention of a jury, and that all of the pleadings, the verdict, and the judgment rendered in the original case would be introduced in court, and that all of said pleadings, the verdict and the judgment should be considered by the court as having the same force and effect as though verified and made a part of the defendant's plea of res judicata.

On the hearing before the trial judge, the plaintiff's plea of res judicata was sustained, and the motion of the defendant to set aside, amend, and vacate a portion of the verdict and judgment in the case, was denied. The exception here is to that ruling and judgment.

Eugene Cook, Atty. Gen., and Victor Davidson, E. J. Clower, and C. E. Gregory Jr., Asst. Attys. Gen., for plaintiff in error.

Russell M. Striplin and Crenshaw, Hansell & Ware, all of Atlanta, for defendant in error.

SUTTON, Presiding Judge (after stating the above facts).

Notwithstanding that this court held, when the case was here on appeal from the judgment of the superior court overruling the defendant's demurrer to the petition, that the petition set out a cause of action for...