City of Atlanta v. King , 182 Ga. 276 ( 1936 )

Atkinson, Justice.

A taxpayer residing in the City of Atlanta during the years 1930 to 1934, inclusive, owned shares of stock in a corporation called Family Loan Society Inc. The officers of the City of Atlanta issued tax fi. fas. against the taxpayer for the years stated. The amount of the tax in each fi. fa. was paid and credited thereon, except proportionate parts which would cover the tax on the shares of stock in the corporation. The part so excepted was not paid, because the taxpayer claimed that the shares of stock were not taxable. In December, 1934, the taxpayer instituted an equitable suit against the city and its officers, to enjoin levy of the tax fi. fas. for the balance due thereon', or further proceedings looking to their collection, praying also that upon final hearing the court decree that the tax fi. fas. were void, and that they be canceled as a cloud on title. It was alleged in paragraph 22 of the petition: “Petitioner, however, further alleges that the City of Atlanta, through its authorized officials, is threatening to levy the said executions, and will levy the same, unless restrained, and will cause petitioner’s property to be seized and sold.” A demurrer to the petition was filed, on the grounds that it failed to allege a cause of action for the relief prayed, and that it appears from the petition that the statute relied on by the plaintiff to establish nontaxability of the shares of stock does not have that effect. The defendant also filed an answer. The case came on for hearing by the judge without a jury upon an agreement of facts. The judge entered an order enjoining the city from levying and enforcing the fi. fas., and decreeing the fi. fas. to be canceled. To this judgment the city excepted. Held that the action is based on anticipated wrong in view of threats to levy the fi. fas., which may never be done, especially in view of the charge that they are void. The action was premature, and consequently the judge erred in granting the injunction and decreeing cancellation. Howard v. Briarcliff Zoological Corporation, 178 Ga. 595 (173 S. E. 391); Harris Orchard Co. v. Tharpe, 177 Ga. 547 (5) (170 S. E. 811, 88 A. L. R. 1212).

(а) The case differs from Fulton Trading Co. v. Baggett, 161 Ga. 669 (131 S. E. 358), in which the execution had been levied.

(б) No ruling will be made on the question of taxability of the shares of stock involved in the case.

Judgment reversed.

All the Justices concur.