Winn v. Butts

• Decision Date: 17 January 1907
• Citation: 56 S.E. 406,127 Ga. 385
• Parties: WINN v. BUTTS, Tax Collector.
• Court: Georgia Supreme Court

56 S.E. 406

127 Ga. 385

WINN v. BUTTS, Tax Collector.

Supreme Court of Georgia

January 17, 1907

Syllabus by the Court.

Where a fi. fa. issued by a tax collector for state and county taxes was levied by a constable upon personal property, and a claim was interposed thereto, it was properly returned for trial to the superior court of the county.

A tax execution, which omitted the direction to any particular officer or officers, but commanded a levy to be made upon the property of the defendant, was irregular, but not void, and could be amended by adding a direction as provided by law.

Where an execution for state and county taxes, issued against one who failed to pay his taxes for the current year, was levied on personal property, to which a claim was interposed, and where it appeared that such property was owned by the defendant in fi. fa. at, the time fixed by law for the return of taxable property for the year, and for some time thereafter, and was then sold by him to another, who in turn sold it to the claimant of the property, who testified that he bought without knowledge of the tax lien, or that the defendant in fi. fa. was indebted to the state and county for taxes for the year, it was not competent for the claimant to introduce the tax return of the defendant in fi. fa. for such year for the purpose of showing that it did not include the property levied on.

Error from Superior Court, Decatur County; W. N. Spence, Judge.

Levy of fi. fa. for state and county taxes against J. W. Dukes by J W. Butts, tax collector. George W. Winn interposes a claim. Judgment for tax collector, and claimant brings error. Affirmed.

E. S Longley, for plaintiff in error.

R. G Hartsfield, for defendant in error.

LUMPKIN J. (after stating the facts).

1. When property is levied on under an execution for taxes, "it may be claimed by a third person and tried in the same manner as other claims are, except that the claimant shall give a bond and security for the eventual condemnation money." Pol. Code 1895, § 899. Upon the making of a claim and the giving of bond "the same proceedings shall be had thereon as provided for the trial of the right of property, except that such trials shall be had in the county wherein the levy was made." Pol. Code 1895, § 900. The execution is directed "to all and singular the sheriffs and constables of this state." Pol. Code 1895, § 894. It may be levied by either of the officers to whom it is directed, or other officer who by law may be authorized to act in their place. A constable cannot levy an execution for taxes when the principal amount exceeds $100. If it is for less than $100, it may be levied either by the sheriff or a constable; and, if the levy be made upon personalty by a constable, "the same shall be advertised and sold as is now provided for justice court fi. fa's.' DD' Pol. Code 1895, § 905. In making such a levy the constable is not treated as the officer of a particular justice's court, or limited to making a levy within his district, but the tax collector may place the fi. fa. "in the hands of any one constable of the county, who shall be authorized to collect or levy the same in any part of the county." Pol. Code 1895, § 906. A return of "No personalty" is not a prerequisite to a levy on hand by a constable for state and county taxes. Watson v. Swann, 83 Ga. 198, 9 S.E. 612.

It will thus appear that, in making a levy of an execution for state and county taxes, a constable is not governed in all respects by the law applicable to levies under fi. fa.'s from a justice's court. As was said by Mr. Chief Justice Bleckley, in Watson v. Swann, supra: "The truth is that revenue proceedings are wholly separate and apart from proceedings to enforce judicial process, and are not to be conformed thereto, except in so far as express law or necessary implication from express law requires." No express provision is made as to where a constable shall return for trial a claim interposed to a levy on personalty. This must be gathered by implication. The superior court is a court of general jurisdiction, where all classes of cases may be tried, including claims interposed to levies on realty or personalty. A justice's court is a court of limited jurisdiction, both as to the subject-matter and territorially. As to subject-matter the Constitution provides that justices of the peace shall have...