McDuffie v. Wilcox County , 165 Ga. 164 ( 1927 )

Gilbert, J.

1. “Insolvent lists of tax-collectors shall alone be allowed by the ordinary, county judge, commissioners of roads and revenues, or other tribunals authorized by law, except grand juries, upon a return of the tax execution with entry of proper legal officer of ‘ no property.’ ” Civil Code (1910), § 1118. It is admitted that the tax fi. fas. allowed by the commissioners in this ease did not show a return of “nulla bona" or “no property.”

2. Where the board of county commissioners, in agreeing to a settlement with a county tax-collector, accepted from him as a credit uncollected tax fi. fas., such settlement did not estop the county from proceeding to collect from the tax-collector and the surety on his bond the amount of such fi. fas. for the reason that the commissioners had no authority under the law to accept and allow such credit. Read v. Glynn County, 145 Ga. 881 (6) (90 S. E. 60). “The powers of public officers of this State are defined by law, and all persons must take notice of this fact.” Decatur County v. Roberts, 159 Ga. 528 (2) (126 S. E. 460).

3. For the same reason, the county is not estopped from proceeding to collect the amounj; allowed by the county commissioners to the tax-collector for county warrants. r

4. The law presumes, when a fi. fa. is issued against a county tax-collector, that the amount named therein is due by the officer, and the burden is on the tax-collector to show that the fi. fa. is invalid or inoperative in whole or in part. Bridges v. Dooly County, 83 Ga. 275 (9 S. E. 1085) ; Mason v. Commissioners, 104 Ga. 35, 50 (30 S. E. 513). The fact that the term of such officer has expired and that at the time the fi. fa. was issued he was a private citizen does not alter the case. Greer v. Turner County, 138 Ca. 558, 562 (75 S. E. 578).

No. 5822. November 16, 1927.

5. The burden being on the defendant in fi. fa. in such case to show what amount of money, if any, has been actually received by the county on the tax fi. fas. and county warrants delivered to the county commissioners, and thus partly or wholly paying off the amount due by such officer, and there being no evidence to that effect, it was not error to rule that such credits were not allowable. A mere statement by a witness that the county received the benefit of fi. fas. against taxpayers and of county warrants is insufficient to authorize a finding that the fi. fas. or any portion of them were collected and the money paid to the county, or to show that the warrants were lawful claims against the county for which the tax-collector was entitled to a credit on the principle of equitable subrogation.

6. There were other exceptions, but they show no error and are not of such a character as to require special mention.

Judgment affirmed.

All the Justices concur. A. J. McDonald and J. B. Wall, for plaintiff in error. Hal Lawson, Whipple & McKenzie, and Jones, Kvins, Moore & Powers, contra.