Eibel v. Royal Indemnity Co.

Court of Appeals of Georgia

Eibel v. Royal Indemnity Co.

177 S.E. 350, 50 Ga. App. 206, 1934 Ga. App. LEXIS 701

CourtCourt of Appeals of Georgia

DecidedNovember 26, 1934

Docket24099

StatusPublished

Cited by6 cases

This text of 177 S.E. 350 (Eibel v. Royal Indemnity Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Eibel v. Royal Indemnity Co., 177 S.E. 350, 50 Ga. App. 206, 1934 Ga. App. LEXIS 701 (Ga. Ct. App. 1934).

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Opinion

Broyles, C. J.

1. “Where an officer not authorized to issue a warrant notifies a person that he will have him arrested on a warrant and prosecuted unless lie pays a certain tax, and such person, because of such threat, pays the tax, the payment is voluntary, under the Civil Code, § 3723 [Civil Code of 1910, § 4317], and the money paid can not be recovered. A petition seeking to recover money so> paid is subject to demurrer, although it alleges that such payment was made under an urgent and immediate necessity therefor and to prevent an immediate seizure of the plaintiff’s person and property. These averments are but conclusions of law, and can avail nothing where it appears that the facts upon which they are based make the payment a voluntary one ” Williams v. Stewart, 115 Ga. 864 (1, 2) (42 S. E. 256) ; Strachan Shipping Co. v. Savannah, 168 Ga. 309 (3) (147 S. E. 555) ; Hoke v. Atlanta, 107 Ga. 416 (33 S. E. 412) ; Strange v. Franklin, 126 Ga. 715 (55 S. E. 943).

[207]*207Decided November 26, 1934. W. G. McRae, G. G. Finch, R. E. Church, for plaintiff. Branch & Howard, Bond Almand, for defendant.

2. Applying' tlie foregoing rilling' to the pleadings in the instant case, the amended petition failed to set out a cause of action, and. was properly dismissed on demurrer.

3. The allegations of the petition failed to raise any constitutional question for the consideration of this court.

Judgment affirmed,.

MacIntyre and Guerry, JJ. ', concur.

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Broyles, C. J.

1. “Where an officer not authorized to issue a warrant notifies a person that he will have him arrested on a warrant and prosecuted unless lie pays a certain tax, and such person, because of such threat, pays the tax, the payment is voluntary, under the Civil Code, § 3723 [Civil Code of 1910, § 4317], and the money paid can not be recovered. A petition seeking to recover money so> paid is subject to demurrer, although it alleges that such payment was made under an urgent and immediate necessity therefor and to prevent an immediate seizure of the plaintiff’s person and property. These averments are but conclusions of law, and can avail nothing where it appears that the facts upon which they are based make the payment a voluntary one ” Williams v. Stewart, 115 Ga. 864 (1, 2) (42 S. E. 256) ; Strachan Shipping Co. v. Savannah, 168 Ga. 309 (3) (147 S. E. 555) ; Hoke v. Atlanta, 107 Ga. 416 (33 S. E. 412) ; Strange v. Franklin, 126 Ga. 715 (55 S. E. 943).

[207]*207Decided November 26, 1934. W. G. McRae, G. G. Finch, R. E. Church, for plaintiff. Branch & Howard, Bond Almand, for defendant.

2. Applying' tlie foregoing rilling' to the pleadings in the instant case, the amended petition failed to set out a cause of action, and. was properly dismissed on demurrer.

3. The allegations of the petition failed to raise any constitutional question for the consideration of this court.

Judgment affirmed,.

MacIntyre and Guerry, JJ. ', concur.

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177 S.E. 350, 50 Ga. App. 206, 1934 Ga. App. LEXIS 701, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eibel-v-royal-indemnity-co-gactapp-1934.

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