Central of Georgia Railway Co. v. Wright , 148 Ga. 86 ( 1918 )

Atkinson, J.

The tax authorized under Civil Code, § 1540, to be levied upon property within the limit of school districts as laid out under provision of §§ 1531 et seq., is a county tax within the meaning of | 1041 as amended by the act approved Aug. 19, 1916 (Acts 1916, p. 34), which provides that “If any railroad company shall dispute the liability to such county tax, it may be done by an affidavit of illegality,” and contains other provisions for the return and trial of the illegality case at the first term of the superior court in the county where the tax is claimed to be owing.

(a) In this case the plaintiff denied liability for the amount of a tax fi. fa., on the ground that it was barred by the statute of limitations; also liability for interest charged in other fi. fas. on taxes falling due during periods which preceded the issuance of such fi. fas., on the ground that there was no statutory provision for charging interest on taxes; also liability upon all of the fi. fas., on the ground that they were void because prematurely issued. Under the above-mentioned statute the plaintiff had an adequate remedy at law, and the case falls within the general rule that a plaintiff can not resort to equity where he has such remedy at law. Civil Code, § 4538.

(&) The provision of the Civil Code, § 1060, that if the delinquent “disputes the taxability” of the property he may raise the question by petition in equity, has no application to the case; it being conceded that the property was taxable, and the only contention being that there was no liability for the tax, for reasons set forth.

Judgment affirmed.

All the Justices concur, except Fish, O. J., absent.

Petition for injunction. Before Judge Bell. Fulton superior court. October 25, 1917.

Lawton & Cunningham, and Little, Powell, Smith & Goldstein, for plaintiff. B. B, White and Shipp & Sheppard, for defendant.