Fite v. Whittemore

Court of Appeals of Georgia

Fite v. Whittemore

148 S.E. 279, 39 Ga. App. 671, 1929 Ga. App. LEXIS 500

CourtCourt of Appeals of Georgia

DecidedMay 14, 1929

Docket19608

StatusPublished

This text of 148 S.E. 279 (Fite v. Whittemore) 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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Fite v. Whittemore, 148 S.E. 279, 39 Ga. App. 671, 1929 Ga. App. LEXIS 500 (Ga. Ct. App. 1929).

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Opinion

Bloodworth, J.

The tax-collector of Gordon county issued an execution against Mrs. M. A. Foster for “State, county, and school tax.” This execution was levied upon personal property “as the property of Mrs. Kate Foster Whittemore,” and she filed an affidavit of illegality. Hpon the trial of the issue formed on the affidavit of illegality the trial judge passed the following order: “It being admitted in open court by the plaintiff in fi. fa. that Mrs. M. A. Foster was dead when the execution levied was issued, on motion of claimant the levy thereunder is dismissed and judgment rendered' against plaintiff for use of officers of court in the sum of $- costs. This 2-29-28.” The tax-execution issued after the death of Mrs. Foster was void. Ayer v. Chapman, 146 Ga. 608 (91 S. E. 548). The judge did not err in dismissing the levy, which was based on a void execution. While the execution in the case just cited was issued by the clerk of the city council for taxes due the city, the principle involved is applicable to the present case. See, in this connection, Miller v. Brooks, 120 Ga. 232 (47 S. E. 646) ; Equitable Building & Loan Association v. State, 115 Ga. 746, 748 (42 S. E. 87), and cit.

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.

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Bloodworth, J.

The tax-collector of Gordon county issued an execution against Mrs. M. A. Foster for “State, county, and school tax.” This execution was levied upon personal property “as the property of Mrs. Kate Foster Whittemore,” and she filed an affidavit of illegality. Hpon the trial of the issue formed on the affidavit of illegality the trial judge passed the following order: “It being admitted in open court by the plaintiff in fi. fa. that Mrs. M. A. Foster was dead when the execution levied was issued, on motion of claimant the levy thereunder is dismissed and judgment rendered' against plaintiff for use of officers of court in the sum of $- costs. This 2-29-28.” The tax-execution issued after the death of Mrs. Foster was void. Ayer v. Chapman, 146 Ga. 608 (91 S. E. 548). The judge did not err in dismissing the levy, which was based on a void execution. While the execution in the case just cited was issued by the clerk of the city council for taxes due the city, the principle involved is applicable to the present case. See, in this connection, Miller v. Brooks, 120 Ga. 232 (47 S. E. 646) ; Equitable Building & Loan Association v. State, 115 Ga. 746, 748 (42 S. E. 87), and cit.

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.

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148 S.E. 279, 39 Ga. App. 671, 1929 Ga. App. LEXIS 500, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fite-v-whittemore-gactapp-1929.

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