Adams v. Smith

240 Ga. 436 (1978) 241 S.E.2d 1

ADAMS et al.
v.
SMITH et al.

32876.

Supreme Court of Georgia.

Submitted October 14, 1977. Decided January 3, 1978.

Hartley & Reid, G. Michael Hartley, George C. Reid, for appellants.

Coney, Tinsley & Tinsley, William C. Tinsley, Barbara V. Tinsley, for appellees.

MARSHALL, Justice.

The appellants filed this class action on June 20, 1977, seeking to enjoin the Douglas County Tax Commissioner from issuing 1976 ad valorem tax notices, and collecting ad valorem taxes for 1976, based on the 1976 ad valorem tax levy adopted by Douglas County Board of Commissioners by resolution on June 7, 1977.

The appellants alleged that the millage rate for the 1976 ad valorem tax levy was erroneous in two respects. First, the appellants contended that the millage rate was not reduced to account for the collection of a 1% local retail sales and use tax, which became effective on October 1, 1976, pursuant to a referendum by the county electorate and a resolution passed by the county board of commissioners. The appellants alleged that this failure to reduce the millage rate was in violation of Code Ann. § 92-3447a.1(j) (Ga. L. 1975, pp. 984, 991). Secondly, the appellants alleged that the millage of 4.5 mills submitted by the appellee county board of education for the retirement of bonded indebtedness, to be factored into the 1976 ad valorem tax levy, erroneously included 2.0 mills for funds to retire a school bond issue not validated until December 7, 1976.

The trial court denied the appellants' prayers for injunctive relief. The appellants did not make any application for supersedeas from this order. The tax commissioner mailed out the tax notices pursuant to the 1976 levy, and those taxes became due and payable as of August 26, 1977. We agree with the appellees that under these circumstances the appeal is now moot.

It is a rather fundamental rule of both equitable jurisprudence and appellate procedure, that if the thing sought to be enjoined in fact takes place, the grant or denial of the injunction becomes moot. See Padgett v. Cowart, 232 Ga. 633 (208 SE2d 455) (1974). To prevent such an appeal from becoming moot the appealing party must obtain a supersedeas. Since this was not done in the present case, we grant the appellees' motion to dismiss the appeal on the ground of mootness.

Appeal dismissed. All the Justices concur.