Lee v. Chilivis

Supreme Court of Georgia

Lee v. Chilivis

215 S.E.2d 256, 234 Ga. 255, 1975 Ga. LEXIS 1101

CourtSupreme Court of Georgia

DecidedApril 22, 1975

Docket29822

StatusPublished

Cited by1 cases

This text of 215 S.E.2d 256 (Lee v. Chilivis) is published on Counsel Stack Legal Research, covering Supreme Court 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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Lee v. Chilivis, 215 S.E.2d 256, 234 Ga. 255, 1975 Ga. LEXIS 1101 (Ga. 1975).

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Opinion

Nichols, Chief Justice.

After an official notice of assessment and demand for payment for past-due sales tax, deliquency penalty and interest was issued by the State Revenue Commissioner against Robert Harry Lee and Mildred Lee, they filed an appeal to the Fulton County Superior Court. Thereafter, the State Revenue Commissioner filed a motion to dismiss such appeal upon the grounds that (1) "the Court lacks jurisdiction over the subject matter” and (2) "because Appellants have failed to satisfy the jurisdictional prerequisites for maintaining this appeal.”

In support of the motion to dismiss the revenue commissioner relied upon the provisions of the Act of 1938 (Ga. L. 1937-38, Ex. Sess., pp. 77,100) as amended (Code Ann. § 92-8446) which requires a bond to be filed by the taxpayer in order for the superior court to have jurisdiction to entertain such an appeal. No bond was filed by the appellants. The taxpayers then amended the appeal so as to attack the constitutionality of such requirement as denying due process of law. The superior court, without expressly passing upon the constitutionality of such provision, dismissed the appeal because the appellant had "failed to satisfy the jurisdictional prerequisites for maintaining this action and that the court therefore lacked subject matter jurisdiction over this action.” The appeal is from this judgment.

1. After the notice of appeal was filed in this case, the decision in Gainesville-Hall County Economic Opportunity Organization v. Blackmon, 233 Ga. 507 (212 SE2d 341), was rendered, which decision upholds the constitutionality of the bond requirement against the same attacks made by the appellants in this case. [256]*256Accordingly, this contention is without merit.

Argued April 16, 1975 Decided April 22, 1975. Durwood T. Pye, Tom Pye, Lewis M. Groover, Jr., Charlie Parker, Jr., for appellants. Arthur K. Bolton, Attorney General, David A. Runnion, Assistant Attorney General, for appellee.

2. Under the express provisions of the Act, supra, contained in Code Ann. § 92-8446 and the decision of the Court of Appeals in Undercofler v. Ernhardt, 111 Ga. App. 598 (142 SE2d 317), the judgment of the trial court dismissing the appeal was not error.

Judgment affirmed.

All the Justices concur.

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Nichols, Chief Justice.

After an official notice of assessment and demand for payment for past-due sales tax, deliquency penalty and interest was issued by the State Revenue Commissioner against Robert Harry Lee and Mildred Lee, they filed an appeal to the Fulton County Superior Court. Thereafter, the State Revenue Commissioner filed a motion to dismiss such appeal upon the grounds that (1) "the Court lacks jurisdiction over the subject matter” and (2) "because Appellants have failed to satisfy the jurisdictional prerequisites for maintaining this appeal.”

In support of the motion to dismiss the revenue commissioner relied upon the provisions of the Act of 1938 (Ga. L. 1937-38, Ex. Sess., pp. 77,100) as amended (Code Ann. § 92-8446) which requires a bond to be filed by the taxpayer in order for the superior court to have jurisdiction to entertain such an appeal. No bond was filed by the appellants. The taxpayers then amended the appeal so as to attack the constitutionality of such requirement as denying due process of law. The superior court, without expressly passing upon the constitutionality of such provision, dismissed the appeal because the appellant had "failed to satisfy the jurisdictional prerequisites for maintaining this action and that the court therefore lacked subject matter jurisdiction over this action.” The appeal is from this judgment.

1. After the notice of appeal was filed in this case, the decision in Gainesville-Hall County Economic Opportunity Organization v. Blackmon, 233 Ga. 507 (212 SE2d 341), was rendered, which decision upholds the constitutionality of the bond requirement against the same attacks made by the appellants in this case. [256]*256Accordingly, this contention is without merit.

Argued April 16, 1975 Decided April 22, 1975. Durwood T. Pye, Tom Pye, Lewis M. Groover, Jr., Charlie Parker, Jr., for appellants. Arthur K. Bolton, Attorney General, David A. Runnion, Assistant Attorney General, for appellee.

2. Under the express provisions of the Act, supra, contained in Code Ann. § 92-8446 and the decision of the Court of Appeals in Undercofler v. Ernhardt, 111 Ga. App. 598 (142 SE2d 317), the judgment of the trial court dismissing the appeal was not error.

Judgment affirmed.

All the Justices concur.

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215 S.E.2d 256, 234 Ga. 255, 1975 Ga. LEXIS 1101, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lee-v-chilivis-ga-1975.

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