Carter v. Dominey , 157 Ga. 167 ( 1924 )

Atkinson, J.

The tax execution was against J. Warren Carter for taxes on land owned by him. J. Warren Carter makes no complaint, but the suit is by Mrs. Georgia Carter as alleged successor in title of J. Warren Carter after the tax execution had issued. The answer of the defendants raised an issue as to the ownership of the property by Mrs. Carter, on which no evidence was introduced. The burden of proof was upon the plaintiff; and as there was no evidence to support the allegation as to ownership of the property, there was failure to make a case showing that the plaintiff had any interest to be protected, or that she had any right to complain of the enforcement of the tax execution against the land. Whether of not’ the statute was constitutional, the plaintiff would have no right to enjoin the tax; and consequently in the circumstances it is not necessary for a proper decision of the case to determine the constitutionality of the statute under which the tax was levied. It is a well-recognized rule in this State that the constitutionality of a statute will not be determined in any case, unless such determination is necessary in order to determine the merits of the suit in which the constitutionality of the statute has been drawn in question. Armstrong v. Jones, 34 Ga. 309 (3); McGill v. Osborne, 131 Ga. 541 (62 S. E. 811); Jones v. L. & N. Railroad Co., 132 Ga. 11, 14 (63 S. E. 627); 12 Corpus Juris, 780, § 212, and decisions in note 98; 6 R. C. L. 76, §§ 74, 75. In the circumstances no decision will be made as to the constitutionality of the statute. Witherow v. Board of Drainage Com., 155 Ga. 476 (4) (117 S. E. 329).

In the brief of the attorneys for the plaintiff in error filed in this court, the only assignment of error insisted upon as a basis for reversal of the judgment refusing an interlocutory injunction is that which relates to alleged unconstitutionality of the statute under which the tax was levied. In these circumstances all other assignments of error will, under the rulings of this court, be treated as abandoned.

Judgment affirmed.

All the Justices concur.