Maddox v. Hill , 225 Ga. 147 ( 1969 )

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225 Ga. 147 (1969) 166 S.E.2d 354
MADDOX et al.
v.
HILL, Tax Collector, et al.
25036.
Supreme Court of Georgia.
Argued February 10, 1969. Decided February 20, 1969.
Hoyt L. Bradford, for appellants.

Richard B. Russell, III, for appellees.

NICHOLS, Justice.

The plaintiffs filed an equitable petition seeking to enjoin the collection of ad valorem taxes in excess of the amount due based upon valuations returned by the *148 taxpayers. It was alleged that assessments had been made arbitrarily in an attempt to increase the tax digest of the county. The defendants filed a motion to dismiss which included the ground that no tender of the taxes admitted to be due had been alleged in the petition. A hearing on such motion was set for November 18, 1968. On the date of the hearing the plaintiffs filed an amendent which alleged a tender of the taxes due based upon their returns and after the defendants' motion to dismiss was renewed the hearing proceeded with a consideration of an affidavit showing that no tender had been made until after the petition was filed. The trial court dismissed the complaint and the plaintiffs appeal. Held:

1. While the motion filed by the defendants and heard by the trial court was denominated a motion to dismiss for failure to state a claim, the trial court admitted affidavits and under such circumstances the hearing was properly considered one for a summary judgment. See Kerry v. Brown, 224 Ga. 200 (160 SE2d 832), and citations. Accordingly, the enumeration of errors complaining of the admission of evidence on the hearing of the motion to dismiss is without merit.

2. Where, as in the present case, the evidence showed that no tender of the taxes admitted to be due was made until after the petition seeking an injunction prohibiting the collection of taxes was filed, the trial court did not err in refusing the prayers of the petition for equitable relief and in dismissing the plaintiffs' petition. See Clisby v. City of Macon, 191 Ga. 749 (13 SE2d 772); Kiker v. Hefner, 224 Ga. 511 (162 SE2d 731), and citations.

Judgment affirmed. All the Justices concur.