Opinion
31206.
DECIDED APRIL 11, 1946.
Tax refund; from Fulton superior court — Judge Almand. January 30, 1946.
Eugene Cook, attorney-general, Victor Davidson, C. E. Gregory Jr., E. J. Clower, assistant attorneys-general, for plaintiff in error.
Russell, M. Striplin, Crenshaw, Hansell Ware, contra.
1. While the State can not be sued without its consent, and a judgment taken against it without its consent to the suit is a nullity, the State can expressly consent to be sued.
( a) Where the State consents to be sued, and voluntarily submits the issues involved to one of its courts having jurisdiction of the parties and of the subject-matter, the judgment rendered is conclusive and binding on the State with respect to the matter litigated.
2. Where a general demurrer to a petition by a taxpayer against the State for the refund of certain taxes illegally collected from him was overruled by the superior court, and that judgment was reviewed by the Court of Appeals in a decision holding that the petition set out a cause of action for the sum sued for, that the action was one against the State, and that the State by the act of January 3, 1938, had consented to be sued for the items set forth in the petition — the subsequent rendition by the Supreme Court of a decision in another case, the effect of which was to hold that the act of January 3, 1938, did not authorize an action for refund of taxes paid before its effective date, did not render the decision of the Court of Appeals invalid or authorize or require the superior court to enter a judgment in the case different from that adjudged by the Court of Appeals, although one of the items set out in the petition was alleged to have been collected prior to the effective date of the act of January 3, 1938.
( a) This court having by solemn judgment settled the issue between the parties as to whether or not the State had consented to be sued for the items set out in the plaintiff's petition, after a subsequent trial in the superior court and a verdict and judgment for the plaintiff, which were not appealed from by the defendant, this issue can not be relitigated between the same parties by a motion of the defendant to set aside and vacate a portion of the verdict and judgment against it upon the ground that the State had not consented to be sued for one of the items set out in the petition; and the trial court did not err in sustaining the plaintiff's plea of res judicata and in dismissing the defendant's motion to set aside, amend, and vacate a portion of the verdict and judgment against it.
DECIDED APRIL 11, 1946.
Continental Gin Company brought suit in Fulton superior court against T. Grady Head, as State revenue commissioner, seeking to recover $10,300, alleged to have been illegally and erroneously collected by the defendant from the plaintiff as occupational taxes for the years 1932 to 1935 and 1937 to 1940. The petition set out the items which constituted the total amount sued for, and the date on which these items were paid to the defendant. The only portion of the sum sued for now in dispute is $1300, which the petition alleged was paid to the defendant on March 1, 1937. To the petition, seeking to recover $10,300 as a refund on excess occupational taxes paid by the plaintiff, the defendant filed a general demurrer, which was overruled. To this judgment the defendant, through J. M. Forrester, as commissioner of revenue and successor in office to T. Grady Head, filed a bill of exceptions and brought the case to this court for determination.
This court held that the petition set out a cause of action for the amount sued for, $10,300, and that the action was one against the State and was authorized under § 34 (b) of the act of January 3, 1938 (Code, Ann. Supp., § 92-8436; Ga. L. Ex. Sess. 1937-38, pp. 77, 95). Forrester v. Continental Gin Company, 67 Ga. App. 119 ( 19 S.E.2d 807). The defendant's petition for a writ of certiorari was denied by the Supreme Court on May 19, 1942.
On the trial of the case in the superior court, the jury, on January 25, 1943, returned a verdict in favor of the plaintiff for $10,300, and a judgment was duly entered thereon. There was no appeal from this verdict and judgment.
On January 15, 1946, M. E. Thompson, as State revenue commissioner and successor in office to T. Grady Head and to J. M. Forrester, filed a petition in the superior court of Fulton County to vacate, amend, and set aside so much of the verdict and judgment entered in this case on January 25, 1943, as related to the sum of $1300 and interest thereon, upon the following grounds: That the petition of the plaintiff alleged the payment as taxes, on March 1, 1937, of $1300; that on September 15, 1942, the Supreme Court decided the case of Eibel v. Forrester, 194 Ga. 439 ( 22 S.E.2d 96), wherein it was held that the statute authorizing the taxpayer to bring an action to recover taxes erroneously or illegally collected from him (Ga. L. Ex. Sess. 1937-38, pp. 77, 94; Code, Ann. Supp., § 92-8436) did not authorize an action for the refund of taxes erroneously or illegally, collected prior to the effective date of that act, March 1, 1938; that this act made no appropriation for and did not authorize the refund of taxes erroneously paid or collected prior to its effective date; that the State had not consented to be sued for a refund of taxes erroneously or illegally collected prior to March 1, 1938; and that the judgment of the superior court, in so far as it related to the refund of $1300 and interest thereon, was void because the superior court was without jurisdiction to render a judgment for this amount, which the plaintiff's petition alleged had been paid on March 1, 1937. The prayers of the motion were, in part, that so much of the verdict and judgment in this case as provided for the refund of $1300, and interest thereon, be vacated, amended, and set aside.
To this petition the plaintiff filed a plea of res judicata, in which it alleged: that the general demurrer to the petition in the original suit had been overruled by the trial court on October 16, 1941; that said judgment had been affirmed by the Court of Appeals of Georgia on March 20, 1942, a rehearing denied by said court on April 1, 1942, and an application to the Supreme Court for certiorari denied; that upon the return of the case to the trial court, the same was tried before a court and a jury, at which time a verdict was rendered in favor of the plaintiff for the principal sum of $10,300 and interest thereon, which principal sum included the item of $1300 that the defendant now seeks to have set aside; that there was no appeal from the verdict and judgment of the superior court, and the defendant, having paid $9000 on the judgment, was bound, under the law, to pay the full amount provided for in the verdict and judgment.
It was stipulated and agreed by the parties that the trial judge should decide any question of fact with regard to the defendant's plea of res judicata without the intervention of a jury; that all of the pleadings, the verdict, and the judgment rendered in the original case would be introduced in court; and that all of said pleadings, the verdict, and the judgment should be considered by the court as having the same force and effect as though verified and made a part of the defendant's plea of res judicata.
On the hearing before the judge, the plaintiff's plea of res judicata was sustained, and the petition of the defendant to set aside, amend, and vacate a portion of the verdict and judgment in the case was denied. The exception here is to that ruling and judgment.
Notwithstanding that this court held, when the case was here on appeal from the judgment of the superior court overruling the defendant's demurrer to the petition, that the petition set out a cause of action for the sum sued for, $10,300, and that the action was one against the State and that the State had consented to be sued in such action ( Forrester v. Continental Gin Co., supra), the defendant now contends that the decision of the Supreme Court in Eibel v. Forrester, supra, nullified the decision of this court, in so far as a portion of the sum sued for is concerned; that the State had not consented to be sued for one of the items set out in the plaintiff's petition and included in the $10,300 sued for in that case; and that the verdict and judgment of the superior court, as to the item of $1300, are void and should be set aside, amended, or vacated, so as to exclude this sum from the amount of the judgment.
That a judgment of a court having no jurisdiction of the person or subject-matter of an action is a mere nullity, and may be so held whenever it becomes material to the interest of the parties to consider it, is a part of our statutory law. Code, § 110-709. Also see Smith v. Ferrario, 105 Ga. 51 ( 31 S.E. 38); Montgomery v. Suttles, 191 Ga. 781 ( 13 S.E.2d 781); Franklin County v. Crow, 128 Ga. 458 ( 57 S.E. 784); Western Union Telegraph Co. v. Cooper, 2 Ga. App. 376 ( 58 S.E. 517). While the State as sovereign can not be sued without its consent, and a judgment taken against the State without its consent to the action is a nullity, the State has the power to consent for an action to be brought against it in one of its courts. The State can expressly consent to be sued. Roberts v. Barwick, 187 Ga. 691, 694 ( 1 S.E.2d 713). When the State consents for suits to be brought against it in one of its courts, and voluntarily submits the issues involved to one of its courts having jurisdiction of the parties and of the subject-matter, the State is bound by the judgment rendered, whether it is favorable or adverse to the contentions made by the State on the trial. Such judgment is conclusive and binding on the State, with respect to the matter litigated, to the same extent as if a private person were concerned. Central Bank Trust Corp. v. State of Georgia, 139 Ga. 54 ( 76 S.E. 587). Also see Mason v. Cooper, 19 Ga. 543, 544, where it was said that when a State disrobed itself of its sovereignty and litigated in one of its courts with a private citizen, it did so "upon terms of perfect equality."
The decision of this court in Forrester v. Continental Gin Co., supra — holding that the petition set out a cause of action as against the general demurrer, that the action was one against the State, and that the State, by the act of January 3, 1938 (Ga. L. Ex. Sess. 1937-38, pp. 77, 94; Code, Ann. Supp., § 92-8436), had consented to be sued in the superior court of Fulton County for the items set out in the plaintiff's petition — was a final judgment, and was binding and conclusive on the parties. The fact that the Supreme Court, in a case between different parties, subsequently held that the act of January 3, 1938 (Ga. L. Ex. Sess. 1937-38, pp. 77, 94; Code, Ann. Supp., § 92-8436) did not authorize an action to be brought for the refund of taxes erroneously or illegally collected prior to the effective date of said act, March 1, 1938, did not render the judgment of this court invalid, or authorize or require the superior court to enter a judgment in this case different from that adjudged by this court when the case was before it on the appeal. Atkinson v. Battle, 11 Ga. App. 837 ( 76 S.E. 597); Southern Bell Telephone c. Co. v. Glawson, 140 Ga. 507 ( 79 S.E. 136).
This court having by solemn judgment settled the issue between the parties as to whether or not the State had consented to be sued in the superior court of Fulton County for $10,300 — representing the items set out in the petition as having been illegally and erroneously collected as taxes from the plaintiff on the dates alleged in the petition — this issue can not be relitigated between the same parties by a motion to set aside a part of the verdict and judgment, which was for $10,300, upon the ground that the State had not consented to be sued for one of the items included in the $10,300 sought to be recovered by the petition. See Lankford v. Holton, 197 Ga. 498 ( 29 S.E.2d 498), and cit. It follows that the trial judge did not err in sustaining the defendant's plea of res judicata and in dismissing the plaintiff's motion to set aside, amend, and vacate so much of the verdict and judgment in this case as related to the sum of $1300, which the petition alleged had been illegally and erroneously collected from the plaintiff by the defendant on March 1, 1937.
The cases cited and relied on by the plaintiff in error are distinguishable on their facts from the present one, and do not authorize or require a ruling different from that herein made. In Thweatt v. State of Georgia, 66 Ga. 673, the State authorized Thweatt to sue in the superior court of Fulton County for his salary for the years 1862 to 1865 as comptroller-general of the State of Georgia, and he filed suit in that court, alleging that the State was indebted to him for $6250 as salary for those years. On the trial it appeared that he had accepted bank notes in payment of his salary for the years mentioned, and that the debt for which the action was brought was extinguished by the plaintiff's acceptance of the bank notes. Under these facts the court granted a nonsuit. The cases of Dix v. Dix, 132 Ga. 630 ( 64 S.E. 790), Epps v. Buckmaster, 104 Ga. 698 ( 30 S.E. 959), Cutts v. Scandrett, 108 Ga. 620 ( 34 S.E. 186), Chapman v. Silver, 18 Ga. App. 476 ( 89 S.E. 590), Little v. McCalla, 20 Ga. App. 324 ( 93 S.E. 37), Griffin v. Nix, 33 Ga. App. 136 ( 125 S.E. 732), Langston v. Nash, 192 Ga. 427 ( 15 S.E.2d 481), Parker v. Travelers Ins. Co., 174 Ga. 525 ( 163 S.E. 159, 81 A.L.R. 472), Watson v. Pearre, 110 Ga. 320 ( 35 S.E. 316), and Robinson v. Attapulgus Clay Co., 55 Ga. App. 141 ( 189 S.E. 555), all state a well-established principle of law, that jurisdiction of the subject-matter of an action can not be conferred by agreement or consent, or be waived by the parties, or be based on an estoppel of a party to deny that it exists, and the principle ruled in the present case does not conflict with the rulings made in those cases; for, in the case at bar, this court judicially determined and adjudged that the superior court of Fulton County had jurisdiction of the subject-matter and of the parties, and this ruling and judgment is conclusive and binding on the parties and res judicata as to the jurisdiction of the superior court of the parties and subject-matter, and of the plaintiff's right to recover upon proving the allegations of its petition. Consequently, the trial court did not err in so holding. Hood v. Bibb Brokerage Corp., 48 Ga. App. 606 ( 173 S.E. 236).
Judgment affirmed. Felton and Parker, JJ., concur.