State Revenue Commission v. National Biscuit Co.

Court of Appeals of Georgia

State Revenue Commission v. National Biscuit Co.

175 S.E. 607, 49 Ga. App. 409, 1934 Ga. App. LEXIS 419

CourtCourt of Appeals of Georgia

DecidedAugust 21, 1934

Docket22771, 22783

StatusPublished

Cited by2 cases

This text of 175 S.E. 607 (State Revenue Commission v. National Biscuit 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.

Bluebook

State Revenue Commission v. National Biscuit Co., 175 S.E. 607, 49 Ga. App. 409, 1934 Ga. App. LEXIS 419 (Ga. Ct. App. 1934).

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Opinion

Jenkins, P. J.

Under answers by the Supreme Court to questions certified to it by this court (State Revenue Commission v. National Biscuit Co., 179 Ga. 90 (175 S. E. 368), as to the main bill of exceptions, the Revenue Commission had legal authority to make the tax assessment and issue the execution, and the trial court erred in dismissing the levy and execution upon the theory that the commission was without such authority. But under such answers, the trial court correctly held that the penalty included in the execution was illegal. Since, however, such excess did not invalidate the entire claim, but required only a partial abatement or amendment (see Civil Code, 1910, §§ 5697, 5698; Winn v. Butts, 127 Ga. 385 (2), 388, 56 S. E. 406; Roberts v. Dancer, 144 Ga. 341 (2), 87 S. E. 287; Glynn County v. Dubberly, 22 Ga. App. 603, 96 S. E. 992), a dismissal of the execution for this reason was unauthorized. As to the cross-bill of exceptions, brought by the defendant in execution, the trial court did not err in its ruling sustaining' the commission’s demurrer to other grounds in the affidavit of illegality.

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

Stephens and Sutton, JJ., concur.

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Jenkins, P. J.

Under answers by the Supreme Court to questions certified to it by this court (State Revenue Commission v. National Biscuit Co., 179 Ga. 90 (175 S. E. 368), as to the main bill of exceptions, the Revenue Commission had legal authority to make the tax assessment and issue the execution, and the trial court erred in dismissing the levy and execution upon the theory that the commission was without such authority. But under such answers, the trial court correctly held that the penalty included in the execution was illegal. Since, however, such excess did not invalidate the entire claim, but required only a partial abatement or amendment (see Civil Code, 1910, §§ 5697, 5698; Winn v. Butts, 127 Ga. 385 (2), 388, 56 S. E. 406; Roberts v. Dancer, 144 Ga. 341 (2), 87 S. E. 287; Glynn County v. Dubberly, 22 Ga. App. 603, 96 S. E. 992), a dismissal of the execution for this reason was unauthorized. As to the cross-bill of exceptions, brought by the defendant in execution, the trial court did not err in its ruling sustaining' the commission’s demurrer to other grounds in the affidavit of illegality.

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

Stephens and Sutton, JJ., concur.

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Bluebook (online)

175 S.E. 607, 49 Ga. App. 409, 1934 Ga. App. LEXIS 419, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-revenue-commission-v-national-biscuit-co-gactapp-1934.

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