Winn v. Butts

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, § 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, § 900. The' execution is directed “to all and singular the sheriffs and constables of this State.” Pol. Code, § 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 can not 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. fas.” Pol. Code, § 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,- § 906. A return of “No personalty” is not a prerequisite to a levy on land by a constable, for State and county taxes. Watson v. Swann, 83 Ga. 198. 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. fas. from a justice’s court. As was sa'id by Mr. Chief Justice Bleckley, in Watson v. Swann, supra, “The truth is that revenue proceedings are wholly separate and apart from proceedings to [388] 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 subject-matter and territorially. As to subject-matter*the constitution provides that justices of the peace shall have jurisdiction in all civil cases arising ex contractu, and in eases of injuries or damages to personal property, when the principal sum does not exceed $100. Civil Code, § 5856. In Everett v. Brown, 117 Ga. 342, it was held that a justice’s court has jurisdiction to try the issue made by a claim interposed to a levy upon personalty, under an execution issued from such court; on the ground that a claim case was not an independent original action, but a species of incident or auxiliary to the original action. An execution issued by a tax-collector does.not grow out of and can not be treated as an incident or auxiliary of any original action in a justice’s court. The tax execution is an independent original proceeding, having no connection with any suit or litigation in such court. A claim for property levied on under it could not, therefore, be properly returned for trial to a justice’s court. As any constable may levy a tax execution anywhere in the county, to which justice’s court would he return a claim interposed to personalty ? The entire legislative scheme on this' subject evidently points to a trial of such cases in the superior court. There was no error in overruling the motion to strike the case from the superior court docket and remand it for trial to the justice’s court. 2. A tax execution issued by the tax-collector should be directed to all and singular the sheriffs and constables of this State. Where the execution stated that “You are hereby commanded” to make a levy, but was not directed to any officer, this was an irregularity; but it did not render the execution a mere nullity; and the defect could be cured by amendment. In the case under consideration the tax-collector was allowed by the court to make the necessary amendment by adding the direction. In this we think the court did not err. In Mitchell v. Long, 74 Ga. 94, two Justices presided and were divided in opinion as to whether a process without direc [389] tion was void; or merely defective. Mr. Justice Hall was of the opinion that "Where the process attached to a declaration was not directed, it was not entirely void or equivalent to no process, but was amendable.” In Neal Millard Co. v. Owens, 115 Ga. 959, 963, no direct ruling was made as to the effect of a want of direction, but the view expressed by Mr. Justice Hall in the ease last cited was apparently treated as correct. In Callaway v. Harrold, 61 Ga. 111, an action was brought in Lee county against several defendants, as residents of that county. A second original, with process directed to the sheriff of Lee county, was sent to Bibb county and served upon one of the defendants, who was in fact a resident there. It was held that process directed to the sheriff of Lee county did not authorize the sheriff of Bibb county to serve the defendant referred to, but that the process should be amended, and that the defendant should be regularly served. In Telford v. Coggins, 76 Ga. 683, a summons in a justice’s court was directed to the defendant, instead of to any lawful constable of the county» It was field that this was an -amendable defect. See also, on this subject, Byars v. Curry, 75 Ga. 515; Cheney v. Beall, 69 Ga. 533; Bedgood v. McLain, 89 Ga. 793(3); Smith v. Bell, 107 Ga. 800. 3. It was undisputed that the defendant i-n execution owed the tax, that the execution was properly issued, and that he was the owner of the property levied on at the time when the lien for taxes for that year accrued. Pol. Code, § 883. If the owner failed to return the property levied on, this would furnish no defense to him or to one who purchased under him after the lien for taxes had attached. Judgment affirmed. All the Justices concur, except Fish, C. J., absent.