Smith v. Gibbs

Hill, J. Mrs. T. S. Gibbs in her own behalf, and as next friend of Thelma Gibbs, minor, brought an equitable petition against O. L. Smith, as sheriff, and C. D. McRae et al., as commissioners of roads and revenues, to enjoin the sale of certain lands belonging to petitioners, levied upon under certain school tax fl. fas. against them. This suit was returnable to the November term of court; the rule nisi was granted on September 27; the judgment of the court was rendered November 15, and the November term of Wilcox superior court did not convene until the fourth Monday, which was the 24th of November. The defendants both demurred to and answered the’ petition. On November 15, 1924, the court passed the following order: “Upon consideration of the demurrer filed by the defendants to the plaintiffs’ petition, it is considered, ordered, and adjudged by the court that the same be and is hereby sustained as to the portion of the plaintiffs’ petition which alleges that the tax of $5.00 on each $1,000 worth of taxable property for the purpose of ‘providing a sinking-fund and [365] providing for the payment of the interest on certain schoolhouse bonds,’ etc., is illegal, and the execution sought to be restrained is permitted to proceed for the collection of that tax. The said demurrer is otherwise overruled. In dealing with this demurrer, I can not consider the allegations made in the defendants’ answer.” Held, that the court was without authority at that time to render a decision on the demurrer, and the judgment overruling it must be reversed. Williamson v. Anderson, 146 Ga. 503 (91 S. E. 553); Union Investment Co. v. Engesser, 151 Ga. 695 (107 S. E. 861); Carter v. O’Quinn, 143 Ga. 390 (85 S. E. 90); Cottingham v. Cottingham, 155 Ga. 460 (117 S. E. 376). No. 4643. April 20, 1925. Eldridge Quits and Hal Lawson, for plaintiffs in error. H. A. Hodges and Max E. Land, contra. Judgment reversed. All the Justices concur.