City of LaGrange v. Frosolona

183 S.E. 99, 52 Ga. App. 232, 1935 Ga. App. LEXIS 119

• Court: Court of Appeals of Georgia
• Decided: December 9, 1935
• Docket: 24996
• Status: Published

Opinions

Sutton, J.

The City of LaGrange issued a street-improvement fi. fa. against M. C. Frosolona, and especially against the following described real estate as the property of the defendant in execution : “Alford Street tract No. 30 : known as the M. O. Frosolona property, fronting 100 feet on the east side of Alford Street and running back an equal width a distance of 180 feet, joining Ashton Street on the north side, and Gus Valeri property on the south side.” The entry of levy thereon recited that the fi. fa. was levied on “Alford Street tract No. 30: known as the M. O. Frosolona property, fronting 100 feet on the east side of Alford Street, and running back an equal width a distance of 180 feet, joining Ashton Street on the north side and Gus Valeri on the south side,” being levied on as the property of the defendant in fi. fa. The paving-assessment execution recited that it was issued “to cover one of the assesments against said real estate for paving and street improvement abutting said real estate, made in conformity with the act of the General Assembly of the State of Georgia, approved August 25, 1927, and found in Georgia Laws, pages 321 to 335, inclusive [Code of 1933, §§ 69-401 to 434 inc.], the ordinances and resolutions of the City of LaGrange, regularly adopted in compliance with said act of the General Assembly, by its mayor and council, same having become due on the 22nd day of Feb., 1932.” The defendant in execution filed an affidavit of illegality. The city traversed the truth of said affidavit. The issue came on for trial, and the city introduced in evidence the street-improvement execution and the levy thereon. No other evidence was submitted. On motion on the ground that the city had failed to make out a prima facie case, the judge directed a verdict in favor of the defendant in execution finding the property levied on not - subject. To this judgment the City of LaGrange excepted.

On the trial of an affidavit of illegality interposed to an execution levied on abutting real estate for an unpaid paving assessment, the burden is on the plaintiff in execution to make out a prima facie case, and this is done by putting in evidence “an execution fair on its face and a legal levy entered thereon.” Hill v. Calhoun, 47 Ga. App. 753 (171 S. E. 459); Hansard v. Pool, 39 Ga. App. 109, 110 (147 S. E. 153); James v. Edward Thompson Co., 17 Ga. App. 578 (87 S. E. 842); Bertody v. Ison, 69 Ga. 317. The execution in this case is “fair on its face.” There is no question that there was a legal levy entered on the execution. If, as recited therein, the paving was done pursuant to the act of August 25, 1927 (Acts 1927, pp. 321 et seq.), and the necessary resolutions and ordinances were adopted and passed by the city, the execution appeared “fair on its face.” Where no objection to the assessment or prior proceedings was made by the property owner as provided in the act, and where no action was filed to enjoin the assessment or the improvement within thirty days after the passage of the ordinance making such assessment final, the property owner will be presumed to have accepted the terms thereof and to have agreed that the assessment provided for in the act may be made. Code of 1933, §§ 69-408, 412, 424; Fowler v. Milledgeville, 47 Ga. App. 585, 588 (170 S. E. 819); Montgomery v. Atlanta, 162 Ga. 534 (134 S. E. 152, 47 A. L. R. 233). It was not incumbent on the city, in order to make out a prima facie case merely, to introduce in evidence the assessment-roll, ordinances, resolutions, and other proceedings, and conclusively prove that the assessment was valid, and that all prior proceedings were proper and legal. The general rule is that all presumptions are in favor of the validity of assessments for local improvements; and while these presumptions are not conclusive, the' burden is on the party attacking the validity of an assessment to prove that it is invalid. 44 C. J. 678; Alexander v. Atlanta, 21 Ga. App. 737 (95 S. E. 267). Likewise it is presumed that public officials have regularly and properly performed their duties. This principle was applied to city officials in City Council of Augusta v. Pearce, 79 Ga. 98, 100 (4 S. E. 404). As shown by the record in Alexander v. Atlanta, supra, the defendant in execution attacked by affidavit of illegality a paving-assessment execution issued by the city of Atlanta. This court held: “The burden was upon the defendant to sustain all the essential allegations in his affidavit of illegality; and the evidence being insufficient to show that the execution was proceeding illegally, a verdict against him was demanded.” See Felker v. Still, 35 Ga. App. 236, 239 (133 S. E. 519). This ease is not like Mayor etc. of Washington v. Moseley, 41 Ga. App. 439 (153 S. E. 790). In that case the opinion shows that the city undertook, in making out its case, to show a valid levy, by offering in evidence certain papers as the original assessments made against the property levied on. These were rejected by the court and not allowed in evidence; and the opinion states that the alleged assessments were not made as required by ordinance, or in fact shown to be assessments of the city. So it will be seen that it affirmatively appeared from the proffered evidence of the city in that case that the execution was not authorized, and therefore the levy was invalid. It follows that the judge erred in dismissing the levy and in directing a verdict for the defendant in fi. fa.

Judgment reversed.

Jenhms, P. J., concurs. Stephens, J., dissents.