Saylor v. Williams

Court of Appeals of Georgia

Saylor v. Williams

92 S.E.2d 565, 93 Ga. App. 643

CourtCourt of Appeals of Georgia

DecidedMarch 8, 1956

Docket36068, 36082

StatusPublished

Cited by7 cases

This text of 92 S.E.2d 565 (Saylor v. Williams) 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.

Bluebook

Saylor v. Williams, 92 S.E.2d 565, 93 Ga. App. 643 (Ga. Ct. App. 1956).

Pincite

Opinion

Quillian, J.

1. The trial judge committed no error in denying the motion to dismiss the affidavit of illegality. No statute of this State makes one who has sold a business and retired liable for sales taxes accruing against the buyer after the sale.

2. It was error to deny the oral motion to dismiss the levy. The most commonly accepted definition of the expression “and/or” is that it means either “and” or “or.” 3 Words & Phrases 640. It is clear from this definition as well as from the holding in Ralls v. E. R. Taylor Auto Co., 202 Ga. 107 (42 S. E. 2d 446), that, in construing the term when employed in pleading, it does not mean both. Hence a pleading that does not disclose which of the meanings is to attach—whether “and” or “or”-—is too indefinite to constitute a positive allegation that the persons, objects, or events to which the expression is applied are referred to alternatively or collectively. In Varnell v. Speer, 55 Ga. 132, it is held: “When the parties are not set out with sufficient certainty to ascertain who are the defendants to a suit, no valid judgment can be rendered against any one.” In Ralls v. E. R. Taylor Auto Co., supra, is found the pronouncement: “Where the affidavit under Code § 61-301, alleging one ground for dispossessing a tenant, is followed by the words ‘or and’ and then another ground, it is not *646 a positive allegation of either ground, and is subject to an oral motion to dismiss.”

3. Since the affidavit of illegality contained the same ground as that asserted in the oral motion to dismiss the levy, the motion was the appropriate method of attacking it. Hill v. DeLaunay, 34 Ga. 427.

4. We see no reason why the general principles applicable to pleadings should not be employed in construing the fi. fa. issued by the commissioner, since its office is to assert that the defendant or defendants in fi. fa. are liable for the taxes, interest, and penalties for which it issues, and their property is subject to be levied upon to satisfy those demands.

Judgment reversed on the main bill of exceptions and affirmed on the cross-bill of exceptions.

Felton, C. J., and Nichols, J., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

Quillian, J.

1. The trial judge committed no error in denying the motion to dismiss the affidavit of illegality. No statute of this State makes one who has sold a business and retired liable for sales taxes accruing against the buyer after the sale.

2. It was error to deny the oral motion to dismiss the levy. The most commonly accepted definition of the expression “and/or” is that it means either “and” or “or.” 3 Words & Phrases 640. It is clear from this definition as well as from the holding in Ralls v. E. R. Taylor Auto Co., 202 Ga. 107 (42 S. E. 2d 446), that, in construing the term when employed in pleading, it does not mean both. Hence a pleading that does not disclose which of the meanings is to attach—whether “and” or “or”-—is too indefinite to constitute a positive allegation that the persons, objects, or events to which the expression is applied are referred to alternatively or collectively. In Varnell v. Speer, 55 Ga. 132, it is held: “When the parties are not set out with sufficient certainty to ascertain who are the defendants to a suit, no valid judgment can be rendered against any one.” In Ralls v. E. R. Taylor Auto Co., supra, is found the pronouncement: “Where the affidavit under Code § 61-301, alleging one ground for dispossessing a tenant, is followed by the words ‘or and’ and then another ground, it is not *646 a positive allegation of either ground, and is subject to an oral motion to dismiss.”

3. Since the affidavit of illegality contained the same ground as that asserted in the oral motion to dismiss the levy, the motion was the appropriate method of attacking it. Hill v. DeLaunay, 34 Ga. 427.

4. We see no reason why the general principles applicable to pleadings should not be employed in construing the fi. fa. issued by the commissioner, since its office is to assert that the defendant or defendants in fi. fa. are liable for the taxes, interest, and penalties for which it issues, and their property is subject to be levied upon to satisfy those demands.

Judgment reversed on the main bill of exceptions and affirmed on the cross-bill of exceptions.

Felton, C. J., and Nichols, J., concur.

Cite This Page — Counsel Stack

Bluebook (online)

92 S.E.2d 565, 93 Ga. App. 643, Counsel Stack Legal Research, https://law.counselstack.com/opinion/saylor-v-williams-gactapp-1956.

Opinion

Related

Cite This Page — Counsel Stack