Summary
In Saylor, the Georgia Court of Appeals held that Georgia law is clear that when the term "and/or" is used in a pleading, it does not mean both.
Summary of this case from TracFone Wireless, Inc. v. Zip Wireless Products, Inc.Opinion
36068, 36082.
DECIDED MARCH 8, 1956. REHEARING DENIED MARCH 26, 1956.
Affidavit of illegality. Before Judge Moore. Fulton Superior Court. December 1, 1955.
Phillips, Johnson Williams, for plaintiff in error.
Eugene Cook, Attorney-General, H. Grady Almand, Jr., Assistant Attorney-General, Benjamin B. Blackburn, III, contra.
The trial judge erred in overruling the defendants' affidavit of illegality and denying the motion to dismiss the levy. The judge did not err in denying the Revenue Commissioner's motion to dismiss the affidavit of illegality.
DECIDED MARCH 8, 1956 — REHEARING DENIED MARCH 26, 1956.
On May 10, 1955, the Deputy Revenue Commissioner issued a State sales-tax fi. fa. in the sum of $411, accruing from May 1, 1954, to April 1, 1955, plus interest and penalty, commanding the authorized levying officers to levy upon the goods, chattels, lands, and tenements of Mr. J. P. Saylor and/or Mrs. J. P. Saylor and/or W. H. Terry d/b/a East Point Cab Company. The fi. fa. was levied by an authorized representative of the State Revenue Commissioner upon certain "assets" of East Point Cab Company as the property of Mr. and Mrs. Saylor. The Saylors interposed an affidavit of illegality on the ground that the fi. fa. issued illegally and was proceeding illegally for the reasons: "Affiants show that on or about the 1st day of January, 1954, they began the operation of a taxicab business in the City of East Point, Georgia, under the trade name of East Point Cab Company. Affiants operated said business through the last day of April, 1954, and during said period of operation duly collected the taxes of the State of Georgia. On the 30th day of April, effective May 1, 1954, affiants leased and turned over said taxicab business and all of the equipment used in connection with the operation of same to one W. H. Terry for an agreed consideration of $100 per week. Under the terms of said lease it was agreed between said parties that said business would belong to and be operated by said W. H. Terry alone, and for his sole benefit for and during the life of said lease, and that he as the owner and operator of said business for the duration of said lease would discharge every duty and obligation imposed upon him by law as the temporary owner and operator of same, except to return and pay ad valorem taxes on said leased property.
"Affiants show that said sales tax fi. fa. levied as aforesaid was issued for sales tax which accrued during the period of time that said business was operated in the manner and under the circumstances above alleged by the said W. H. Terry for his sole and exclusive benefit.
"Affiants show that by reason of the above stated facts the full amount of the sales tax, penalties, interest and costs called for by said sales tax fi. fa. are owed solely by the said W. H. Terry, and that for this reason said fi. fa. issued illegally against affiants, and is proceeding illegally against them and their property levied upon as aforesaid.
"Affiants further show that said sales tax fi. fa. is void, as well as the said levy of same upon their said property, because the same is too vague, uncertain and indefinite to be capable of enforcement, in that by reason of the names of the purported defendants therein being connected by the expression `and/or', said fi. fa. fails to positively name or identify the person, persons or legal entity against whom it is issued, or against whom it was intended to be issued and enforced."
The commissioner moved to dismiss the affidavit of illegality because the defendants failed to allege that a final return was ever made by Mr. and Mrs. Saylor after the business was leased to Terry.
The superior court in separate orders denied both motions. The Saylors excepted to the ruling adverse to them, and the commissioner by cross-bill of exceptions assigns error on the denial of his motion.
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 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.