text:
    17499.
    RAWLS v. HEATH.
    This being a suit upon a note, and it appearing that the payment made by the defendant and accepted by the plaintiff, which the defendant pleaded as an accord and satisfaction of the plaintiff’s claim, was not, under the terms of the contract, tendered and paid in full satisfaction of the plaintiff’s claim, and it further appearing that the alleged agreement, under which the defendant through his attorney paid to the plaintiff’s attorney an amount less than the plaintiff’s claim, was entered into between the attorneys themselves, and it not appearing that the attorney for the plaintiff had authority from his client to settle his client’s claim for less than the amount claimed, or that the plaintiff had ratified any act of her attorney, if there was any, agreeing to accept the amount paid to him in full settlement of her claim, the verdict for the defendant, sustaining the plea of accord and satisfaction, was without evidence to support it.
    Decided February 10, 1927.
    Complaint; from Laurens superior court — Judge Camp, May 6, 1936.
    Mrs. M. E. Bawls sued D. M. Heatb upon a promissory.note for one thousand dollars and interest and fifteen per cent, for attorney’s fees as contracted for in the note, less credits for sums admitted to have been paid. The defendant pleaded payment of $80 in addition to the payments admitted by the plaintiff and credited upon the note, and admitted the plaintiff’s right to recover the attorney’s fees sued for except as this right of the plaintiff may have been satisfied by an alleged agreement of accord and satisfaction between the parties, made after the filing of the suit. The defendant pleaded that, after the institution of the pending suit upon the note, the plaintiff, in the exercise of a power of sale contained in the defendant’s deed to certain land to secure the payment of the note, undertook to advertise and sell the land; that the defendant sought to enjoin the sale, on the ground that he did not owe the full amount claimed by the plaintiff, that at the interlocutory hearing of the petition for injunction a full settlement of the indebtedness sued for in the present suit and a full settlement of the injunction proceedings were made -by virtue of an agreement between counsel, by which the defendant, the plaintiff' in the injunction suit, paid to counsel for the plaintiff, who was the defendant in the injunction suit, the full amount admitted by the defendant to be due to the plaintiff, which was less than the indebtedness claimed in the present action.

      Attorney and Client, 6 C. J. p. 662, n. 58.

      On the trial of the case there was introduced in evidence the' petition for injunction and the answer thereto. In the petition for injunction the present defendant admitted an indebtedness to the present plaintiff in the entire amount here claimed and sued for, less an alleged credit of $80 and the amount sued for as attorney’s fees, and alleged that the amount due had been tendered to the respondent, the present plaintiff. The present plaintiff did not, in the answer filed by her as the respondent in the injunction proceeding, concede the correctness of the then plaintiff’s claim of a credit of $80 upon the indebtedness and nonliability for attorney’s fees, but did express her willingness to accept the amount admitted by the then plaintiff as due and as having been tendered, and to withdraw the property from sale.
    Heath, the defendant, testified that he “paid to the plaintiff $1,179, which was the amount of the principal and interest” which he admitted to be due, that this did not include the $80 in dispute or the attorney’s fees, that when he paid this amount he “was settling the entire debt with the plaintiff,” that he gave a postdated cheek for $900 on June 4 and the balance about September -1, that he' “did not claim to have any agreement with any one representing Mrs. Eawls other than is shown in the pleadings in the injunction suit.”
    . S. P. New, the attorney for the defendant, testified that he represented the defendant as the petitioner in the injunction suit, that he and the defendant came into court in response to the order issued in the injunction suit and “made that payment as a settlement of the debt and both suits except costs,” that “at that time he was making a final and complete settlement between the two litigants,” that he said to Mr.. Crockett, who was attorney for the respondent therein, “Now there are some attorney fees claimed and this settles them,” that Mr. Crockett replied, “I am accepting your tender in the suit.” Mr. Crockett testified: “There was no agreement made with any one respecting a settlement of this suit on trial and no settlement of this suit was made;” “Mr. New did inquire as to the attorney fees and I replied that I was accepting his tender made in the suit.” It does not appear anywhere that Mr. Crockett, the attorney for the present plaintiff, the respondent in the injunction suit, had authority to accept less than the full amount in settlement of his client’s claim, nor does it appear that his client ratified any such agreement if such an agreement was made.
    The verdict was for the defendant, and the plaintiff moved for a new trial upon the general grounds only.

      C. C. Crockett, for plaintiff. Hightower & New, for defendant.
   Stephens, J.

(After stating the foregoing facts.) It seems that from the testimony of Mr. Heath, the defendant, and Mr. New, his attorney, the inference is demanded that the transaction as respects the payment did not take place between the plaintiff and the defendant personally, but took place between Mr. New and Mr. Crockett as attorneys for the respective parties. The inference is also demanded that Mr. New’s statement in his testimony, that at the time he made the payment he settled both suits and “was making a final and complete settlement,” is merely his conclusion as to the effect of the transaction. Mr. New testified, and it is undisputed, that when he was making the payment he expressly stated to Mr. Crockett that this payment settled the attorney’s fees, and Mr. Crockett replied, “I am accepting your tender in the suit.” This necessarily referred to the tender as contained in the petition for injunction. This statement of Mr. Crockett is necessarily part of tbe transaction between the attorneys.

It appears that the money was not accepted on the terms of the tender of Mr. New, unless the tender in the petition for injunction was the same as the tender made by Mr. New. Nowhere in the petition for injunction does it appear that the plaintiff therein made any tender in full settlement of the present plaintiff’s claim. The only tender alleged in the petition, and therefore the only tender accepted by Mr. Crockett for his client, was a mere recital by the present defendant in the petition for injunction of a tender of the amount which he admitted he owed the present plaintiff, the 'then respondent, without any suggestion that such tender was made in full' settlement of the claim. The allegations in the petition for injunction with reference to tender are as follows: “Petitioner . . has also tendered to the defendant all that she demands in said suit, or the advertisement hereinafter referred to, except the attorney fees and one payment of $80 on April 1, 1920, which payment defendant made to her as alleged in his plea hereto attached. Petitioner . . with these two exceptions . . has tendered to defendant all that she demands, which tender was refused, and defendant does herein again tender to defendant all 'that she demands in said suit, or in the advertisement hereinafter referred to and offers to tender the same in lawful tender in open court. . . Notwithstanding said issues are pending and the plaintifE therein elected her remedy and refused a lawful tender of all the petitioner is due her, she advertised said property. . ' . Petitioner having tendered defendant all that he owes her, and now tenders, the same in open court . .” Thus it appears that the amount tendered was less than the amount claimed by the present plaintiff by $80 and the attorney’s fees.

The statement made by Mr. Crockett to Mr. New, when Mr. Crockett accepted the money paid by Mr. New, amounted to a refusal by Mr. Crockett to accept the money in accordance with the •terms of Mr. New’s tender. It follows that although the money was tendered in full settlement by Mr. New, it was not accepted in full settlement by Mr. Crockett. There was therefore no meeting of the minds and no agreement in the nature of an accord and satisfaction. The money, having been actually paid by Mr. New to Mr. Crockett, must necessarily be treated as a payment on account. Had Mr. Crockett received the money from Mr. New in silence, or without expressly indicating that he was accepting the money upon different terms than the terms of Mr. New’s tender, there might have arisen an implied acquiescence by Mr. Crockett to Mr. New’s terms, and therefore an acceptance of those terms, thus creating an agreement in the nature of an accord and satisfaction.

We are therefore of the opinion that the verdict for the defendant, which necessarily finds that the payment made was in full settlement of the entire claim of the plaintiff, was without evidence to support it.

Furthermore, it does not appear that Mr. Crockett had any authority from his client to receive the money paid, which was less than his client’s claim, in full settlement of his client’s demand; and if the evidence could be construed as warranting the inference that there was an agreement between'counsel to the effect that the payment was made in full settlement .of the plaintiff’s demand, and that Mr. Crockett received the money in full settlement of his client’s demand, it does not appear that his client received the money with knowledge of any such agreement, or that she otherwise ratified any such act. Without special authority an attorney can not enter into an agreement binding his client to receive anything less than the full amount of his client’s claim in full settlement thereof. Civil Code (1910), § 4956. Kaiser v. Hancock, 106 Ga. 217 (32 S. E. 123). For this reason also the verdict for the defendant is without evidence to support it.

It appears from the pleadings that, but for the alleged agreement of accord and satisfaction, which as we have held is not sustained by the evidence, the plaintiff is entitled to attorney’s fees. There is no evidence in support of the defendant’s plea of payment of $80 over and above the sums credited as payments by the plaintiff.

Judgment reversed.

Jenkins, P. J., and Bell, J., concur.


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    16848.
    Clark v. Bridges, administrator.
    Decided February 14, 1927.
    Appeal; from Richmond superior court — Judge A. L. Franklin. July 6, 1925.

      J. 8. Watkins, for plaintiff in error.
    Gifts, 28 O. J. p. 664, n. 43, 49; p. 665, n. #4, 56.
   Bell, J.

Under the answer of the Supreme Court to questions certified in this case (163 Ga. 542, 136 S. E. 444), where the mother of a minor child deposited the mother’s money in a savings bank and received therefor the bank’s unsigned deposit ticket, referring to the deposit as having been made by the mother “or” the child, and bearing (after the statement of the amount) the words “Payable to both or either, or the survivor, granting each to the other irrevocable power to draw on our joint or several names,” the terms and language of the deposit-ticket being in accordance with the understanding between the mother and the bank at the time she made the deposit, and where the bank issued also to the mother its pass-book showing such deposit, which pass-book was never in the possession of any other person during the remainder of her life, but which book the bank did not require to be presented with checks as a condition to their payment, and the mother, but no other during her life, drew checks on the account, which the bank paid, and where it does not appear that the child or anyone except the mother and the agents of the bank knew of such deposit until after the mother’s death, and where the mother died intestate, leaving heirs other than the child referred to, and there remained in the bank at that event a substantial balance of the fund so deposited, these facts and circumstances, without more, would not authorize the inference that such balance of the fund became the property of the child on the mother’s death. On the contrary, it was a part of the mother’s estate and should have been administered as such. It follows that the verdict in favor of the administrator and against the caveator, on the issue formed by the eayeat to the administrator’s return, was contrary to the evidence and without evidence to support it, and that the court erred in refusing the caveator’s motion for a new trial.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.


text:
    17149.
    Blaylock et al. v. Walker County Bank.
    Appeal and Error, 3 O. J. p. 746, n. 16; p. 845, n. 75; p. 847, n. 89, 93, 94; p. 850, n. 24; 4 C. J. p. 761, n. 17; p. 1033, n. 37.
    Evidence, 22 C. J. p. 181, n. 43; p. 573, n. 33, 34; p. 583, n. 23, 24; p. 584, n. 27.
    New Trial, 29 Cyc. p. 851, n. 38.
    Trial, 38 Cyc. p. 1693, n. 55.
   Bell, J.

The debtor of a bank deposited with another as bailee for hire a pertain automobile and thereafter pledged with the bank the bailee’s receipt therefor as collateral security for the debt. In the present action of trover by tlie bank against the bailee to recover the value of the property the verdict was in favor of the plaintiff. The defendant’s motion for new trial having been overruled, the movant excepted.

1. The testimony of the plaintiff’s cashier, “that the invoice price of . . [the automobile] was $1,730; that was what they were selling for; the dealers were paying wholesale prices,” was not inadmissible upon the ground that the market value could not be shown by proving the invoice price, nor upon the ground that the witness was not shown to be an expert on the value of automobiles. While the cost of property may not be sufficient to establish its market value, it may be considered with other facts in' determining value. Watson v. Loughran, 112 Ga. 837 (3) (38 S. E. 82). The witness presumably was testifying from his own knowledge. Shaw v. Jones, 133 Ga. 446 (3) (66 S. E. 240). It is not necessary that a witness be an expert or dealer in an article in order that he may testify as to its value, but his testimony will be admissible if he has had opportunity for forming a correct opinion. Civil Code (1910), § 5875.

2. One of the contentions made by the defendant was that the bailee’s receipt had been fraudulently altered. The court in charging the jury as to this contention gave an instruction substantially in the language of section 4296 of the Civil Code (191.0), including the last sentence thereof, as follows: “If the alteration be made by a stranger, and not at the instance or by collusion of a party or privy, if the original words can still be restored, the contract will be enforced.” The defendant excepted to the portion of the charge thus quoted, upon the ground that, since the evidence disclosed that the alteration was made by the bailor, instructions upon the subject of alteration by a stranger were inapplicable, misleading, and prejudicial. The mere fact that the judge includes in his charge some legal principle inapplicable to the issues does not always require a reversal. In the present case it appears from the record as a whole that the defendant could not have been hurt by the charge complained of. Kirkland v. Brewton, 32 Ga. App. 128 (2) (122 S. E. 814).

3. Special ground 8 of the motion for new trial, complaining that a certain charge of the court was error because it was confusing and misleading and not adapted to the issue in the case, fails to point out any error with sufficient certainty to invoke a decision by this court. Wade v. Eason, 31 Ga. App. 256 (1) (120 S. E. 440).

(a) In the absence of a timely written request the judge was not required to charge more fully than he did-on the subject of estoppels

4. As appears from.the undisputed evidence in this ease, the bailee had delivered the property to (and had thus satisfied) the bailor, although such delivery was not consented to by the plaintiff bank, which held and retained the bailee’s receipt. The bailor’s debt for which the receipt was held by the bank as collateral was less than the value of the property as found by the verdict in favor of the bank. Assuming, without deciding, that under these circumstances the defendant, by appropriate pleading and evidence, could have prevented a recovery by the bank of more than the amount of its debt against the bailor (Brown v. West, 35 Ga. App. 444 (133 S. E. 304); Sheldon v. So. Express Co., 48 Ga. 626 (1) ), the defendant having failed altogether to plead such defense, the judge of the trial court, whether he may have been authorized to do so, was not bound to grant a new trial merely because the evidence showed that the debt was less than the value of the property. Civil Code (1910), § 5636; Morton v. Frick Co., 87 Ga. 230 (1) (13 S. E. 463); Johnston v. Gulledge, 115 Ga. 981 (3) (42 S. E. 354); Republic Truck Sales Corp. v. Padgett, 30 Ga. App. 474 (3) (118 S. E. 435); Slack v. Elkins, 10 Ga. App. 571 (2) (73 S. E. 862); Liebling v. Tabb, 30 Ga. App. 38 (2) (116 S. E. 666); Kiser v. Westbrook, 33 Ga. App. 208 (1) (125 S. E. 774).

Decided February 14, 1927.

Trover; from Walker superior court — Judge Maddox. January 6, 1926.

Norman Shattuclc, S. W. Farriss Jr.., for plaintiffs in error.

Rosser & Shaw, contra.

5. The evidence authorized the verdict. The court did not err in refusing a new trial.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.


text:
    17153.
    Featherston v. Reese et al.

    Agency, 2 O. J. p. 457, n. 73; p. 487, n. 99; p. 925, n. 25.
    Contracts, 13 C. J. p. 279, n. 13; p. 280, n. 22; p. 283, n. 50.
    Landlord and Tenant, 35 C. J. p. 1207, n. 15.
   Bell, J.

1. “The authority of an agent to execute a sealed instrument must itself be under seal, although the instrument may evidence a contract not required by law to be under seal; and ratification of such instrument, to be binding upon the principal, must also be under seal.” Neely v. Stevens, 138 Ga. 305 (1) (75 S. E. 159). Furthermore, the agent’s authority to execute such an instrument must affirmatively appear. United Leather Co. v. Proudfit, 151 Ga. 403 (1) (107 S. E. 327).

2. Assuming that the instrument involved in this case, when presented to the plaintiff signed by the defendants but not signed by any person having authority to act' for the plaintiff, amounted to an offer by the defendants to enter into a contract with the plaintiff to rent the building, it was, nevertheless, an offer to enter into a contract under seal, and the act of the plaintiff in attaching his signature thereto, under the words “accepted and approved” but without a seal, did not constitute an acceptance of the offer as made and could not serve to consummate a legally binding contract. Monk v. McDaniel, 116 Ga. 108 (3) (42 S. E. 360). Under the facts and circumstances set forth in'the petition such act on the part of the plaintiff did not amount to a counter-offer to make a contract not under seal; hence the acceptance and retention of the instrument by the defendants would not effectuate a contract of that character.

3. Furthermore, the lessees having refused to enter, and having repudiated the alleged contract before the beginning of the lease term, the owner’s act of reletting the premises without notice to the lessees that such reletting was on their account operated to discharge the lessees from liability, if any ever existed. Whether the owner, by giving such notice, could have held the lessees liable for the difference in rents need not be decided in this case. Ledsinger v. Burke, 113 Ga. 74 (1) (38 S. E. 313); Rucker v. Tabor, 127 Ga. 101 (56 S. E. 124); Hurt v. Kibby, 4 Ga. App. 43 (60 S. E. 802); Gay v. Peak, 5 Ga. App. 583 (3) (63 S. E. 650).

Decided February 14, 1927.

Action for breach of contract; from Floyd superior court-judge Maddox. January 8, 1926.

O. N. Featherston sought to recover for the breach of an alleged contract whereby the defendants, Julian A. Reese and W. G. Wright, on October 4, 1924, agreed to rent from him a certain building for five years at $255 per month. The alleged agreement contained the following stipulations: “It is understood and agreed by and between the parties hereto that possession of the above-described premises shall be given to the parties of the second part as soon as party of the first part is in position to give occupancy. It is further understood by and between the parties hereto that the term of this contract shall begin five days after written notice is given to parties of the second part hereto that the said premises are ready for occupancy, and that said lease shall continue for a period of five years from the date of its beginning as herein provided for.” The petition alleged that at the time the parties entered into the agreement each understood that the property was in the possession of another as the plaintiffs tenant under a lease to expire about October 14, 1924. This tenant “had been given an agreement that he might remain in said building and occupy the same for either 30 or 60 days,” or longer, pending the completion of a new building which he was then constructing. The petition alleged that in view of these circumstances it was contemplated between the plaintiff and the defendants that delivery of the premises would be made within a reasonable time, to “be determined by the completion” of the new building of the tenant then in possession. Before the happening of this event and while the-old tenant was still in possession the defendants, on December 31, 1924, served notice on the plaintiff “that they repudiated the lease and would not recognise themselves bound, nor accept the premises.” The plaintiff thereupon, in the exercise of diligence, sueceeded in renting the premises to another for a term of five years at $225 per month] “which was $30 a month less, or $1,800 less for the term of lease,” than the plaintiff should have received from the defendants. This sum was alleged to be the amount of the plaintiff’s damage. The instrument which the plaintiff alleged to be his contract was signed by him through agents, and by each of the defendants, under the seal of each party. It was alleged that before delivery “the same was brought by plaintiff’s agent and by the defendants to plaintiff personally, and duplicate copies of said contract were then and there submitted to the plaintiff for his approval, with the request and suggestion by plaintiff’s agent and' by the defendants that plaintiff accept and approve the same. Plaintiff then and there in the presence of his agent and in the presence of the defendants examined the said contract, and wrote on each duplicate copy thereof the words 'Accepted and approved,’ and signed his name under such words [but without a seal], and thereupon retained a copy of the said contract himself and delivered a duplicate thereof, with such words written thereon, to the defendants, and the defendants thereupon accepted such duplicate copy and allowed and permitted and thereby agreed to plaintiff’s retaining the other copy.” The conclusion of the contract and the signatures thereto were as follows:

4. The court did not err in sustaining the general demurrer and dismissing the petition.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.

“In witness hereof, parties hereto have set their hands and affixed" their seals, a duplicate copy being given to each of the parties hereto.

“C. N. Featherston, by his agents Harvey-Given Co. By Hugh Given, See’ty. (Seal.)

“Beese-Wright Garage. By Julian Beese. (Seal.) By W. G. Wright. (Seal.) >

“Accepted and approved. O. N. Featherston.”

There was no allegation that the agent was authorized to execute in the plaintiff’s behalf a sealed contract. It was not alleged that the plaintiff gave notice to the defendants that he would relet the premises for their account.

The petition was demurred to upon the ground, among others, that it “shows on its face that the contract on which the same is based was an instrument under seal, that the same was executed by an agent in behalf of the plaintiff, and that the authority of the agent to execute said contract is not shown, and that no authority to execute same is in writing and under seal, and that said contract has not been ratified by plaintiff by a’ writing under seal as is required by law.”

The court sustained the demurrer, and the plaintiff excepted.

Willingham, Wright & Covington, for plaintiff.

Maddox, Matthews & Owens, Denny & Wright, for defendants.


text:
    17174, 17175.
    WRIGHT, comptroller-general, v. CENTRAL OF GEORGIA RAILWAY COMPANY; and vice versa.

    1. The proper county authorities may legally levy a tax not exceeding 100 per cent, of the State tax, to pay accumulated debts and current expenses of the county, or either, without reference to any recommendation of the grand jury. Southwestern R. Go. v. Wright, 156 Ga. 1 (2) (118 S. E. 552) ; Central of Ga. Ry. Go. v. Wright, 156 Ga. 13 (118 S. E. 709).
    2. Where it is necessary to do so in order to meet the current expenses of the county, the proper authorities may, for the purposes specified in section 508 of the Civil Code (1910), levy a tax not exceeding 50 per cent, of the State tax, without a recommendation of the grand jury. Southwestern R. Go. v. Wright, supra; Sheffield V. Chancy, 138 Ga. 677 '(75 S. E. 1112); Sullwan v. Yow, 125 Ga. 326 (54 S. E. 173) ; Waller v. Perkins, 52 Ga. 234 (2) ; Civil Code (1910), § 510.
    3. A tax to pay bonded indebtedness of the county, levied in accordance with the orders and resolutions of the proper authorities in the issuance of the bonds, is not to be considered in determining whether the authorities have exceeded the limits of § 507 and § 508, supra. Sheffield v. Ohanoy, supra; Blalock v. Adams, 154 Ga. 326 (2) (114 S. E. 345) ; Arnett v. Griffin, 60 Ga. 349.

      (a) The same is also true of a tax for school purposes, levied in conformity with the laws providing for a county-wide local-school tax. See Ga. L., 1919,'p. 337; Sullivan v. Yow, supra; MeMillctn v. Tucker, 154 Ga. 154 (6) (113 S. E. 391).
    4. Applying these rulings, the tax levy was not excessive, as alleged in the affidavit of illegality. It follows that no error was committed as against the taxpayer. The judgment was erroneous, however, as against ■ the county so far as it adjudged that the tax levy was excessive to any extent. There was no other error in the judgment.
    Decided February 14, 1927.
    Illegality of execution; from Morgan superior court — Judge Park. December 4, 1925.
    Certiorari was granted by the Supreme Court.
    This case arose upon an affidavit of illegality interposed to the levy of a tax execution issued by the comptroller-general, for the use of Morgan county, against the Central of Georgia Eailway Company. The county commissioners had levied taxes for the year 1924 as follows:

      Counties, 15 C. J. p. 634, n. 56, 57; p. 636, n. 87; p. 637, n. 97, 98; p. 639, n. 20.

      1. 27 cents on the hundred dollars for public road purposes.
    2. 50 cents on the hundred dollars to pay any lawful indebtedness (referring to bonded indebtedness only as hereinafter shown).
    3. 8 cents on the hundred dollars to build-and repair bridges, jails and other public buildings.
    4. 13 cents on the hundred dollars to pay jailor, sheriff, or other officer’s fees.
    5. 5 cents on the hundred dollars to pay jurors per diem.
    6. 5 cents on the hundred dollars to pay bailiffs, non-resident witnesses, stationery, servants, fuel, lights and water for said county.
    7. 6 cents on the hundred dollars to pay expense of the poor.
    8. 6 cents on the hundred dollars for any and all other legal purposes (current expenses only as shown below).
    9. 50 cents on the hundred dollars for public school purposes on all property outside the city of Madison.
    The defendant paid all taxes except those levied -in items 4, 5, 6, and 8. The defendant in its affidavit of illegality attacked these items as being invalid, on various grounds, as follows: 1. The county commissioners have no power to levy any tax for current expenses or for county purposes except as granted in the Civil Code (1910), §§ 508 and 510, and no recommendation of the grand jury had been made so as to authorize the levy under section 508, and there was no proof of facts rendering it lawful to levy the tax, without such recommendation, under section 510. 2. Even if a levy for current expenses or for county purposes was permissible without the recommendation of the grand jury, the levy in question was still excessive to the extent of four-tenths of a mill, the amount by which it exceeded 50 per cent, of the State tax. 3. If the levy should be construed as having been made under section 507, then to items 4, 5, 6, and 8 must be added item 2, making a total of 79 cents on the $100, with the result that the levy would exceed 100 per cent of the State tax by 29 cents on the $100, and would be to that extent illegal. 4. The tax levied in item 9 should be classed as a tax for current expense, and when this is added to the tax levied under items 2, 4, 5, 6, and 8, the total amount levied for accumulated debts and current expenses is $1.29 on the $100, or 79 cents more than 100 per cent of the State tax, allowable under section 507, and the defendant has therefore overpaid the county “to the extent of 50 cents on the $100.” By agreement the issue raised by the affidavit of illegality was submitted to the trial judge without the intervention of a jury, upon agreed facts, as follows: No recommendation was made by the grand jury, as provided in Civil Code (1910), § 508. The tax levy for the State for the year 1924 was 50 cents on the hundred. Morgan county, prior to 1924, had adopted a county-wide local-tax system for public schools, for which the board of education levied a tax of 50 cents on the hundred for the year 1924. Item 2 of the levy by the county commissioners, as set forth above, was levied “solely for the purpose of paying bonds, interest 'on the same, and sinking funds for bonds, all of which bond's were voted, issued, and sold prior to the year 1924.” Item 8 was levied for the ordinary current expenses of the county. The county had an expense for the salaries of officers in 1924 as follows: judge and solicitor of the city court of Madison, aggregate, $2,700; county treasurer, $500; and farm demonstrator, $1,800. The value of all property in the county subject to taxation for 1924 was $4,489,112.
    The trial judge sustained the affidavit of illegality to the extent of 4 cents on the $100, or 4/10 of a mill, “overruling” it otherwise.
    The comptroller-general and the railway company both excepted. The contentions made in the bill of exceptions brought by the comptroller-general (No. 17174) are, that, in determining whether the levy was excessive under the law as contained in any of the above-cited code sections, the court should have deducted the amounts levied to pay the salaries of the farm demonstrator and of the judge and solicitor of the city court, as fixed by law (which amounts it is claimed were included in item 4); and should also have eliminated item 6, so far as it applied to stationery, fuel, and water (although the sum expended for these things was not shown), because section 402 of the Civil Code made it mandatory upon the commissioners to provide the same; but that irrespective of these questions, the court erred in adjudging the levy to be excessive to any extent. The contentions made in the bill of .exceptions brought by the railway company (No. 17175) are as stated above, from the affidavit of illegality.

      Q. L. Williford, for plaintiff.

      Harris, Harris & Popper, Anderson & Wood, for defendant.
   Bell, J.

(After stating the foregoing facts.) It is to be inferred that the items of the tax levy which- are objected to in this case were classified by the learned judge of the court below as having been levied under section 508 of the Civil Code, whereas we think that with equal reason they could be regarded as having been levied under section 507. The ultimate question is whether the authority to levy them existed under either or both sections, or under any law or laws. See So. Ry. Co. v. Wright, 36 Ga. App. 391. Under section 507 it was permissible for the county authorities to levy-a tax for accumulated debts and current expenses, or either, not to exceed 100 per cent, of the State tax, without .reference to any recommendation of the grand jury. See cases cited in headnote 1. When we consider the levy, as we think it may be considered, as one authorized under section 507, and when for the purpose of determining whether it was excessive we eliminate certain items in accordance with the rulings contained in head-notes 3 and 3 (a) above (items 1, 3, and 7 are also to be eliminated, — Sullivan v. Yow, supra), the items which are attacked in the affidavit of illegality are well within the limit prescribed in section 507, as construed by the decisions. It follows that the judgment contained no error as against the railway company, but was erroneous as against the county, the court having improperly held that the levy was excessive to the extent of four-tenths of a mill, whereas it was not excessive to any extent. In this view, it is unnecessary to pass upon the other contentions made in behalf of the county. Nothing further need be added to what is said in the headnotes. But see, in this connection, Central of Ga. Ry. Co. v. Wright, 36 Ga. App. 382, 386.

The bill of exceptions brought by the railway company is termed by the company’s attorneys a cross-bill. In view of the form and contents of that bill and the time within which it was brought, and also in view of the disposition which we make of the bill brought by the comptroller-general, which is unquestionably a main bill, it is immaterial whether the bill of the railway company is a main 'bill or a cross-bill. We think it can be treated as a cross-bill, irrespective of -whether it might be good if classiñed as a main bill.

Judgment reversed on bill of exceptions No. 1717 and affirmed on bill of exceptions No. 17175.

Jenkins, P. J., and Stephens, J., concur.


text:
    17448, 17454.
    CENTRAL OF GEORGIA RAILWAY COMPANY v. WRIGHT, comptroller-general, and vice-versa.

    “Under the Civil Code (1910), § 507, the proper county authorities can levy a tax of 100 per cent, of the State tax to pay current expenses of the county.” Geniral of Ga. Ry. Go. v. Wright, 156 Ga. 13 (118 S. E. 709). The court did not err in this case in “overruling” the affidavit of illegality and ordering that the fi. fa. proceed.
    Counties, 15 C. J. p. 634, n. 56; p. 636, n. 87.
    Decided February 14, 1927.
    Affidavit of illegality of execution; from Putnam superior court —Judge Park. May 15, 1926.
    Application for certiorari was granted by the Supreme Court.

      A. R. Lawton Jr., M. F. Adams, for plaintiff in error.

      S. T. Wingfield, contra.
   Bell, J.

On September 17, 1925, the commissioners of roads and revenues of Putnam county made the following tax levy:

1. To pay legal indebtedness of county......... 1 mill.

2. To build and repair court-house, jail, bridges, ferries, and poor-house .................... 3 3/4 mills.

3. To pay sheriffs and jailers.........:....... 1/2 mill.

4. To pay coroners’ fees.......................1 mill.

5. To pay expenses of county court, fuel, servant hire and stationery ....................... 2/5 mill.

6. To pay jurors a per diem compensation...... 1/2 mill.

7. To pay expenses for support of poor......... 1 mill.

8. To pay salaries of judge's, commissioners, and solicitor, and tax-collector ................. 2 1/4 mills.

9. For constructing public roads .............. 4 mills.

Total 13 1/2 mills

The Central of Georgia Railway Company paid the taxes required of it with the exception of $1.25 per thousand, amounting to $531.08. A fi. fa. having been issued and levied upon its property for this balance, it interposed an affidavit of illegality, attacking items 3, 4, 5, 6, and 8, aggregating $3.75 per thousand, upon the ground that this amount exceeded 50 per cent of the State tax (5 mills, or $5 per thousand) by $1.25 per thousand, and that the levy for these items was to that extent illegal and void. The case was tried upon a stipulation of facts as follows: At the time of the levy of the tax in September, 1925, there was an outstanding bonded indebtedness against the county, amounting to $18,855 and of this sum $1,855 was due for the fiscal year 1925. The grand jury, at the -March term 1925, recommended a levy of 2-% mills for county purposes. The alternative road law is in force in Putnam county.

The comptroller-general, by his attorney, offered in evidence two amendments made by the board of commissioners to their tax levy, by which there was inserted in the levy the following recital: “It appearing to this board,-after they have met this day to assess and levy taxes for Putnam county for the fiscal year 1925, that 100 per cent, of the State tax of 5 mills will be needed to pay the debt that has accumulated against said county and is due for said year, to wit, a bonded debt of $1,855, and the current expenses thereof for the fiscal year 1925, as is provided for in Civil Code (1910), § 507, therefore it is ordered that said 100 per cent, or 5 mills, or so much thereof as may be necessary, is hereby levied and assessed for these purposes, and the following taxes shall be and are hereby levied for said accumulated debt and said current expenses under and according to the provision of said section 507 of the Civil Code of 1910, the remaining taxes in said order and assessment being set forth in items 2, 7, and 9 thereof.” The court rejected these amendments from the evidence, but “overruled” the affidavit of illegality, and both parties excepted, the railway company by the main bill of exceptions and the comptroller-general by the cross-bill.

The contention of counsel for the railway company is that the county authorities have no authority to levy a tax for current expenses or county purposes except as granted in the Civil Code (1910), §§ 508 and 510. It is denied that any authority to levy a tax for current expenses is conferred by section 507, the contention being that the tax for that purpose can be levied only under one of the other sections referred to, and must, according^, be limited to 50 per cent of the State tax. The question for decision on the main bill of exceptions, as stated by counsel for the plaintiff in error therein, is, “ Can a county, which has made a levy to pay debts, lev¿r more than 50 per cent, of the State tax for current expenses, provided it does not levy more than 100 per cent, of the State tax for the combined purposes of. paying its current expenses and discharging its debts?” Under the decision in Central of Ga. Ry. Co. v. Wright, 156 Ga. 13 (supra), (which may hereinafter be called the Central Railway case in 156 Ga.) this question should be answered in the affirmative. In that case, the Supreme Court, in answering a question propounded by the Court of Appeals, ruled that under the Civil Code (1910), § 507, the county authorities may levy a tax of 100 per cent, of the State tax to pay current expenses of the county, but that a levy to pay both current expenses and accumulated debts, or a levy for either of these items, must not exceed 100 per cent, of the State tax. However, it would seem that under the ruling in the later case of Seaboard Air-Line Ry. Co. v. Wright, 161 Ga. 136 (129 S. E. 646), (which may hereafter be called the Seaboard case in 161 Ga.), the answer to the question now before us should be in the negative. In the case last cited, the Supreme Court said, “The levy of a tax for the purposes specified in section 508 cannot exceed 50 per cent, of the State tax. This limit extends to current expenses.” We are unable to reconcile the two decisions just referred to. They are opposed to each other by counsel in the briefs, and we think it necessary to determine which of them we shall follow in the present case.

The able counsel for the plaintiff in error, in maintaining that the case last cited expresses the true law, have furnished a most interesting brief, in which they undertake to trace the origin of the sections of the code relating to the authority of counties, by their proper officers, to levy taxes for current expenses and county purposes; and in which they have sought to show that counties had no authority to tax for general county purposes until the passage of an act from which we get the present section 508, by which the inferior court was granted power to levy a tax “extraordinary of the general State tax,” not to exceed 50 per cent, annually on such general State tax, upon' the recommendation of two-thirds of the grand jury. Compare summary of tax laws in Tucker v. Inferior Court, 34 Ga. 370. Counsel contends that this limit of 50 per cent, has never been increased, notwithstanding the provisions of section 507, which section, it is pointed out, succeeded section 508 in its position in the several codes until the Code of 1895, when it was transferred and placed in its present order. See Sheffield v. Chancy, 138 Ga. 667 (75 S. E. 1112). It is insisted that merely to take a section of the code from one relative position and place it in another could not have the effect of changing the law, and that 50 per cent, of the State tax continues to be the maximum that may be. levied for county purposes, with the exception of certain levies not to be counted in making this amount. Sullivan v. Yow, 125 Ga. 326 (54 S. E. 173). In the decision in the Sheffield case, in which all the Justices concurred, it appears that the Supreme Court took a different view (though some of the language in that case may be obiter) from that entertained by counsel as to the effect of the transposition of the provisions of the present section 507. Then in Wright v. So. Ry. Co., 146 Ga. 581 (91 S. E. 681), the Supreme Court ruled as follows: “County authorities may legally levy a tax not exceeding 100 per cent, of the State tax, to pay accumulated debts and current expenses of the county, without any reference to a recommendation by the grand jury. If 100 per cent, of the State tax be not sufficient to pay accumulated debts and current expenses of the county; the authorities have power to raise a tax for county purposes over and above the tax of 100 per cent, of the State tax, not to exceed 50 per cent, of the State tax for the year it is levied, 'provided two-thirds of the grand jury recommend such tax’.” Only five of the Justices presided in that case. But the same rulings, all the Justices concurring in each instance, were made in So. Ry. Co. v. Wright, 154 Ga. 334 (114 S. E. 359), and in Southwestern R. Co. v. Wright, 156 Ga. 1 (118 S. E. 552). In the' first of these two cases the court was requested to review and overrule the decision in 146 Ga., but declined to do so and adhered to the ruling in that case. See also Blalock v. Adams, 154 Ga. 326 (114 S. E. 345). Finally, in the Central of Georgia Railway Co. case in 156 Ga., in determining the meaning of section 507 as relating to the power to levy taxes for the payment of current expenses, the Supreme Court, after citing cases to show that this section conferred authority to levy 100 per cent, of the State tax to pay accumulated debts, said, “It follows necessarily from the above decisions that if the proper county authorities can levy a tax of 100 per cent, of the State tax to pay accumulated debts, under the above quoted section, they can levy 100 per cent, of the State tax to pay current expenses.” This decision was by a full bench, and we have been unable to find any older case in point to the contrary of what was held therein. We think it contains the first direct ruling on the question whether counties may, under section 507, levy a tax of 100 per cent, of the State tax to pay current expenses only. The decision in the Seaboard case in 161 Ga. was not only later in point of time, but was by a divided court, Mr. Justice Beck dissenting. The decision in the Central of Georgia Railway Co. case in 156 Ga. was in response to a direct and clear-cut question certified by this court, in a case involving facts substantially identical with those of the case at bar, and undoubtedly calling for the application of the same rules of law.

Under the above analysis of the decisions, we think it plain that this court could not decide the present case in favor of the plaintiff in error. In our humble opinion such a disposition of it would require the overruling of a decision or decisions of the Supreme Court, which, of course, we have neither the authority nor the inclination to do.

The decision in the Seaboard case in the 161 Ga. reversed a judgment of this court which was under direct review on certiorari, and it is with the greatest hesitation that we do not now follow the Supreme Court’s decision in that case. Our sole reason for not doing so is that, upon considerations already stated, we feel bound by the decision in the Central of Georgia Railway Co. case in the 156 Ga. We do not quite follow the reasoning in that case to the effect that the tax authorized by section 507 “is an extra or special tax,” additional to that which may be levied under section 508; but that part of the decision has no bearing on the present case.

We have very great doubt as to what is the true law applicable to cases of this character, and would have been pleased to comply with the request of counsel to defer decision in this case until the Supreme Court decides a similar case, pending in that court, between the same parties, on writ of error from Spalding county; but our information is that that case came up several months later than the instant case, which must-be decided during the present term, while a decision is not required in the Spalding county case until during the next term. For this reason we have not undertaken to withhold decision in this case as requested.

We could certify a question; but since the plaintiff ^in -error has open to it the remedy of certiorari, and since, as seen, we have heretofore requested and received instructions from the Supreme Court upon the identical point under consideration, we deem it proper not to repeat‘the question in this case.

Since our affirmance of the judgment on the main bill will re- ' suit in a final disposition of the case in the court below, it is unnecessary to deal with the assignments in the cross-bill of exceptions.

Judgment affirmed on the main hill of exceptions; cross-hill dismissed.

Jenkins, P. J., and Stephens, J., concur.


text:
    17268.
    SOUTHERN RAILWAY COMPANY v. WRIGHT, comptroller-general.
    Tlie plaintiff in error in this ease attacked a tax levy upon the ground that certain items levied for accumulated debts and current expenses, amounting to more than 100 per cent, of the State tax, but less than 150 per cent, of that tax, were illegal so far as they exceeded 100 per cent, of the State tax, solely because there was no recommendation of the grand jury, in pursuance of section 508 of the Civil Code, authorizing such excess and because there was no proof of any facts rendering such recommendation unnecessary within contemplation of section 510. Held: The additional tax of 50 per cent, of the State tax, which may be levied under section 508 with a recommendation of the grand' jury, may be levied without such recommendation where it is necessary to do so in order to meet the current expenses of the county; and after the assessment has been made, such necessity will be presumed, in the absence of anything to the contrary. “All presumptions are in favor of the legality and validity of a tax.”
    Decided February 14, 1927.
    Affidavit of illegality of execution; from DeKalb superior court —Judge Hutcheson. February 20, 1926.
    Certiorari was granted by the Supreme Court.

      McDaniel & Neely, for plaintiff in error. L. J. Steele, contra.
    Counties, 15 C. J. p. 634, n. 56; p. 635, n. 85; p. 639, n. 20.
    Taxation, 37 Cyc. p. 1069, n. 20.
   Bell, J.

In the year 1923, the sole commissioner of DeKalb county levied taxes as follows:

1. 35 cents on the $100 to pay the legal indebtedness due and to become due during the year 1923.

2. 20 cents on the $100 to build or repair court house or jail, bridges, and ferries.

3. 10 cents on the $100 to pay sheriffs.

4. of a cent on the $100 to pay coroner.

5. 2 cents on the $100 to pay the expenses of the county for bailiffs, non-resident witnesses, fuel, stationery, etc.

6. 3 cents on the $100 to pay jurors.

7. 2-% cents on the $100 to pay expenses in supporting the poor.

8. 40 cents on the $100 to pay for public works and chain-gang.

9. 15 cents on the $100 to pay any and all lawful charges against said county.

10. 22 cents on the $100 to pay interests on the bonded debt and provide a sinking-fund.

The Southern Bailway Company paid all the taxes required of it except a certain amount which it claimed was illegal, and, upon a levy being made upon its property for the balance, it filed an affidavit of illegality, attacking items 1, 3, 4, 5, 6, and 9, aggregating $6,525 per thou'sand, as being illegal to the extent of $1,525 per thousand, by which the amount levied in these items exceeded 100 per cent of the State tax of 5 mills or $5 per thousand. The case as made by the affidavit of illegality was heard by the judge of the superior court without the intervention of a jury upon agreed facts as follows: The allegations of fact (not the conclusions) contained in the affidavit of illegality are true. In the year 1923 there was a debt against DeKalb’ county, which had accrued prior to that year, for the purpose of paying which the commissioner levied a tax of $3.50 per thousand.as set forth in item 1 of the levy in question. There has never been any recommendation of the grand jury, authorizing the levy of any tax either for the year 1923 or for any other year. The court “overruled” the affidavit of illegality and ordered that the fi. fa. proceed, and the railway company excepted.

The plaintiff in error in this case does not contend, as did the railway company in the two cases between Central of Georgia Rail way Company and Wright, comptroller-general, No. 17174 and No. 17448, this day decided (ante, 382, 386), that county authorities cannot under any circumstances levy a tax for current expenses or for county purposes to exceed 50 per cent, of the State tax, in contemplation of section 508 of the Civil Code. But in the present case counsel for the plaintiif in error say in their brief that “The only question for decision is, whether or not a county in anycgiven year can levy taxes for past-due indebtedness and current expenses, or general county purposes, in excess of 100 per cent, of the State tax, without a recommendation of the grand jury, and in the absence- of showing that the excess is necessary to make up a sum sufficient to discharge 25 per cent, of the accumulated debt, or that there is a mandamus requiring the levy, or a judgment?” Counsel concede that “when debts have accumulated against the county, a levy of 100 per cent, of the State tax, but no more, can be levied to pay the current expenses and the debt,” and that it is permissible to levy 150 per cent, of the State tax to pay current expenses and debts, “provided that as to the extra 50 per cent, over and above a 100 per cent, there is a recommendation of the grand jury.” It thus appears that the only insistence of counsel for the plaintiif in error is that, although the items which are brought into question were authorized under the Civil Code, § 507, up to 100 per cent, of the State tax, or $5 per thousand, the entire remainder of $1,525 was in excess of the amount which it was permissible to levy under that section, and that this remainder can not be sustained, either under section 508 or under section 510, because there was no recommendation of the grand jury authorizing it as a tax “over and above the tax” elsewhere provided for, and because there was no proof of the necessity of levying such excess, so as to warrant the levy without such recommendation. The company is complaining solely because the grand jury made no recommendation in pursuance of section 508, and because there was no proof of any facts rendering such recommendation unnecessary within contemplation of section 510.

The additional tax of 50 per cent, of the State tax, which may be levied under section 508 with a recommendation of the grand jury, may be levied without such recommendation where it is necessary to do so in order to meet the current expenses of the county. Civil Code (1910), § 510; So. Ry. Co. v. Wright, 154 Ga. 334 (114 S. E. 359); Southwestern R. Co. v. Wright, 156 Ga. 1 (118 S. E. 552); Sullivan v. Yow, 125 Ga. 326 (54 S. E. 173). And such necessity will be presumed, in the absence of anything to the contrary. “All presumptions are in favoi; of the legality and validity of a tax.” Blalock v. Adams, 154 Ga. 326 (3) (114 S. E. 345). Although the reverse may not be true, a tax for “current expenses” (see § 507) is a tax for “county purposes” (see § 508), and if the levy of 150- per cent, of the State tax for current expenses was otherwise lawful, it would not be invalid merely because the power to levy it was not derived altogether from- section 507, a part of the tax being authorized under that section and the remainder being authorized by section 508. Anything that this court may have said to the contrary in Central of Ga. Ry. Co. v. Wright, 33 Ga. App. 96 (see bottom of page 98 and top of 99) (125 S. E. 520), is not sound law and will not be followed. While, for the purpose of determining whether a tax is authorized, it may be pertinent to classify the tax as falling under one or the. other of these two sections, the ultimate question is whether the authority to levy it existed under one or the other of these sections, or under any law or laws.

We think the sole contention made is controlled adversely to the plaintiff in error by the authorities cited above, and hence see no reason to reverse the judgment.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.


text:
    17222.
    Stanfield, guardian, v. Hursey.
    Domicile, 19 C. J. p. 406, n. 2; p. 410, n. 25; p. 418, n. 83, 93.
    Evidánce, 22 C. J. p. 86, n. 75; p. 87, n. 90; p. 88, n. 91.
    Limitation of Actions, 37 C. J. p. 768, n. 63; p. 1004, n. 90; p. 1005, n. 92, 95; p. 1026, n. 81; p. 1027, n. 82, 83; p. 1251, n, 87.
   Bell, J.

1. Where, after incurring liability, the debtor becomes insane, this fact will not prevent the creditor from bringing suit, and therefore will not affect the operation of the statute of limitations against the debt. Scott v. Winningham, 79 Ga. 492 (4 S. E. 390); Foster v. Jones, 23 Ga. 168; Civil Code (1910), § 5858 (1); Elliott v. Keith, 102 Ga. 119 (29 S. E. 155); 19 Am. & Eng. Enc. of Law (2d ed.) 241; 37 C. J. 1026.

2. In order for the removal of a debtor from this State to suspend the operation of the statute of limitations, it must be accompanied by an intention to change his legal residence or domicile. Sedwick v. Gending, 55 Ga. 265 (2); Civil Code (1910), § 4358.

Decided February 14, 1927.

Complaint; from city court of Reidsville — Judge Cowart. January 4, 1926.

M. W. Eason, P. M. Anderson, for plaintiff in error.

A. S. Way, H. H. Elders, H. C. Beasley, contra.

3. As to a person sui juris, the matter of making a change in domicile is one involving the exercise of volition and choice. A person who has been adjudged insane can not, by his own act or volition, effect a change in his domicile. Civil Code (1910), §§ 21'85, 2186, 2187. Insanity shown once to have existed is, in the absence of proof to the contrary, presumed to continue. Weeks v. Reliance Fertilizer Co., 20 Ga. App. 498 (2) (93 S. E. 152); Civil Code (1910), § 5740.

4. Where a resident of this State was adjudged insane by the courts of this State in 1910, he was at least prima facie incapable thereafter of making a change of his domicile. Proof that, after such adjudication, he “went over to stay with his people in North Carolina,” and was placed in a public institution of that State for insane persons, is insufficient to show that such person ceased to be a resident of the State of Georgia, or that his removal from this State was such as to suspend the operation of the statute of limitations as to a debt against him. Compare Jackson v. So. Flour & Grain Co., 146 Ga. 453 (1) (91 S. E. 481).

5. The evidence in the instant case having shown that the entire amount of the plaintiff’s account matured during or before the year 1911, the same was barred prior to the appointment of the defendant as the guardian of the property of such insane person on April 2, 1917. Civil Code (1910), § 4362. Assuming the authority of such guardian to revive the claim after the bar of the statute had already attached, the evidence shows no act which could possibly be sufficient to effect such revival. Lambert v. Doyle, 117 Ga. 81 (2) (43 S. E. 416).

6. The defendant having pleaded the statute of limitations, and the undisputed evidence, with all inferences and deductions therefrom, having established, as a matter of law, that the plaintiff’s debt was barred as alleged, the. verdict in favor of the plaintiff was contrary to the evidence, and the court erred in refusing the defendant’s motion for a new trial.

7. Queere: Is a suit for a general personal judgment against an insane person maintainable against one who is merely the guardian of the property of such insane person? Is personal service upon such insane person a requisite to a valid judgment? Is it permissible for the plaintiff in a case like the present to testify in his own favor as to transactions or communications with such insane person? See authorities cited in paragraph 1 above.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.