Glynn County v. Dubberly

Wade,. C. J. Under the answers of the Supreme Court to questions certified in this case by the Court of Appeals (148 Ga. 290, 96 S. E. 566) the following rulings necessarily result: 1. Under the provisions of sections 1202 and 1235 of the Civil Code of 1910, a tax-receiver is not entitled to one half of the commissions on the amount which the tax-collector of his county receives for collecting taxes from public-service corporations which make their tax returns directly to the comptroller-general, and which make no returns whatever to such receiver. These sections fix the rate of compensation where the tax return is entered on the digest of the tax-receiver, but have no ap'plication to returns made exclusively to the eomptroíler-general of the State and which are not entered on the tax-receiver’s digest. (a) The trial court therefore erred in not ordering that the execution proceed for the full amount of the several principal sums claimed therein, and in sustaining the affidavit of illegality as to a part of said sums. 2. Where a tax-receiver is paid by the county authorities larger amounts than are lawfully due him as commissions, and thereafter fails and refuses to pay back such excess on demand, and execution issues against him and his sureties for the amount or amounts unlawfully retained by him, the legal ra.te of seven per cent, per annum only should be collected on the principal amount or amounts, and he is -not liable for interest at the rate of twenty per cent, per annum as provided in section 1187 of the Civil Code of 1910, relating to tax-collectors. There is no statute (as in the case of a county treasurer,—see Civil Code, § 585) putting the tax-receiver on the same basis as the tax-collector in this respect; and the same reasons for exacting a penalty of twenty, per cent, do not exist. (o) The court therefore did not'err in directing that the execution should proceed for interest at seven per cent, per annum only, instead of at the rate of twenty per cent, per annum as claimed in the execution, and in sustaining to this extent the affidavit of illegality. 3. A defendant in execution cannot by demurrer or motion to quash raise issues and matters of defense which could have been included in the original affidavit of. illegality, or could have been added to it by way of amendment (by making oath that he did not know of such additional grounds when the original affidavit was made, as provided by section 5704 of the Civil Code), even though he had made or attempted to make the following reservations in his original affidavit of illegality: “that he makes this affidavit without prejudice to and' expressly reserving unto himself the right to hereinafter make and take ' any and all manner of exception that can or may be had by way of demurrer, mption to dismiss,' or otherwise, to the aforesaid execution, both in form and in substance, and as to the proceedings previous to its issue and upon which it is founded, the manner of its issuance,'-'the levy made thereon, and all things appertaining to the sam'e.” Judgment reversed in part and affirmed in part on main 5ill of exceptions; cross-bill dismissed. Jenlcins and Tnihe, •/,/., concur." Affidavit of illegality of execution; from Glynn superior court— Judge Highsmith. .February 13, 1917. B. D. Meader, for Glynn County. J. T. Colson, contra.