Hawes v. Bigbie , 123 Ga. App. 122 ( 1970 )

Deen, Judge.

1. On a prior appearance of this case the Court of Appeals entered an order as follows: "On motion it is ordered that counsel for appellant be allowed to withdraw this case and that the judgment of the court below stand affirmed.” Such an order permitting voluntary withdrawal of a pending appeal prior to decision is not an adjudication of affirmance on the merits but merely a statement of existing law that the judgment of the trial court remains in the same state as though no appeal had been filed.

2. Where the legislature adopts in a statute phraseology from the laws of the United States or a jurisdiction thereof which has been interpreted by the courts of that entity it may be assumed that the language adopted is intended to be construed in the manner in which it was understood by the jurisdiction of origin. Tamiami Trail Tours v. Ga. Pub. Serv. Comm., 213 Ga. 418, 424 (99 SE2d 225). The language of Code Ann. §92-8436 (Ga. L. 1937-38, Ex. Sess., pp. 77, 94; 1945, pp. 272, 274; 1955, pp. 455, 458) providing for refunds, appropriation of funds and procedure, may in the first sentence be ambiguous as to whether it is referring to taxes "erroneously or illegally assessed” and thereafter collected, or taxes erroneously or illegally collected, as contended by the appellee. Subparagraph (b), however, states that “an erroneous or illegal collection of tax or license” may be refunded. The language is taken from 26 USCA § 7422 (26 USCA, 1934, § 1672) which authorizes refunds in cases of taxes "erroneously or illegally assessed or collected” and we construe the meaning to be the same in both cases. The Supreme Court of the United States held that the right given to sue for refund of taxes illegally assessed or collected was in the nature of an action for money had and received. Lewis v. Reynolds, 284 U. S. 281 (52 SC 145, 76 LE 293); Helvering v. Taylor, 293 U. S. 507 (55 SC 287, 79 LE 623). This court has also held that a suit for a tax refund is one for money had and received "which the plaintiff, ex aequo et bono, is entitled to recover and which the defendant is not entitled in good conscience to retain.” Oxford v. Shuman, 106 Ga. App. 73, 79 (126 SE2d 522). "The theory of the action in a suit for refund is indebitatus assumpsit for money had and received, and the burden of proof is on the taxpayer to produce evidence that the defendant holds money which in equity and good conscience he has no right to retain.” Hawes v. Smith, 120 Ga. App. 158 (1) (169 SE2d 823). Under Code Ann. § 92-8436 (b) the plaintiff may indeed, in any case where there has been an illegal collection of a tax, file his claim for a refund, but in order to prevail upon the trial of the action he must show that the taxing authority is not in equity and good conscience entitled to the money. Here we have a situation where the taxpayer may indeed owe the money which the State collected. At least, this is a disputed issue of fact. The State’s method of collection was illegal in that it had no right to resort to garnishment until after a valid entry of nulla bona, and there the nulla bona entry was false and fraudulent. What the State did was unconscionable — after levying on the taxpayer’s property and seizing it, and obtaining a tax illegality bond, instead of proceeding on the bond it issued a garnishment and collected a bank account belonging to the taxpayer based on a return of "no personal property found.” The taxpayer is undoubtedly, if this is true, entitled to redress from someone for the tort committed upon him under color of office. These facts appearing, the garnishment proceeding itself would have been a nullity. But even though the taxpayer has been wronged, his suit for refund is based on the theory that the State has collected taxes which he did not owe. It may well be true either (a) that the taxpayer did not owe the money, or (b) that any money owed is represented by a valid and subsisting bond against which the State is proceeding in some other action, and that therefore he does not owe the State the money which it collected under the garnishment. The status of the bond is not before us, and the tax liability is disputed. Therefore, the question of the plaintiff’s tax liability, if any, should be submitted to the jury.

Argued May 6, 1970 Decided December 2, 1970 Rehearing denied December 17, 1970 — Cert, applied for. Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, William L. Harper, James B. Talley, Assistant Attorneys General, for appellant. R. R. Jones, for appellee.

We adopt this view reluctantly, and in view of the authorities above quoted. Where money is owing to the State, it has its remedies for enforcement of its rights, and it should no more be permitted to take the property of its citizens unlawfully, even if the citizen is justly indebted to it, than a private person would be permitted to appropriate my automobile at will because I owe him a grocery bill. It may even be that under Fifth Amendment guarantees the State is precluded from setting up a defense based on its own wrongdoing, but this is a question not before us at this time.

The trial court erred in granting summary judgment to the taxpayer. The denial of appellant’s motion for summary judgment was proper.

Jordan, P. J., Hall, P. J., Eberhardt and Whitman, JJ., concur. Bell, C. J., Pannell, Quillian and Evans, JJ., dissent.