Sackett v. City of New Albany.

to require, when that limit of indebtedness has been reached, that such corporations shall be prepared to pay for whatever of value they may obtain, without the incurrence of any further indebtedness for any purpose whatever. In this view the allegation of the complaint, that there was no money in the treasury of the city of New Albany which could be applied to the payment of the claim of the fire alarm telegraph company, was a material and pivotal allegation in this proceeding. The necessary inference from that allegation was, that if an order should be issued on the treasurer of the city for the payment of that claim, it would become simply a debt due from the city to be thereafter provided for, if ever paid, and which could be made to draw interest by being presented to, and properly indorsed and registered by, the city treasurer. R. S., 1881, § 3081.

It is further insisted by the appellees that other remedies were open to the appellant, and that for that reason, if for no other, the facts alleged did not make a case for a restraining order against them. In their assumption of that position the appellees are not supported by the authorities. On the contrary, the weight of authority is overwhelmingly against the position they thus seek to maintain. In a case like this no other remedy would be so apt, comprehensive and complete as a suit to restrain the municipal authorities from transcending the limitations placed upon them by tne organic law of the State, and thus possibly involving embarrassing, if not harassing complications. Dill. Mun. Corp., § 914, et seq.; City of New London v. Brainard, 22 Conn. 552; Webster v. Town of Harwinton, 32 id. 131; Colton v. Hanchett, 13 Ill. 615; Barr v. Deniston, 19 N. H. 170; Mayor, etc., v. Gill, 31 Md. 375; Merrill v. Plainfield, 45 N. H. 126; Roberts v. Mayor, etc., 5 Abb. Pr. 41.

The facts averred in the complaint presented what appears to us to have been a good prima facie case for a restraining order against the appellees. We cannot therefore escape the conclusion that the court erred in dissolving the temporary restraining order without cause shown, or hearing the cause upon its merits.

The judgment is reversed, with costs, and the cause remanded for further proceedings not inconsistent with this opinion.

Judgment reversed.

Howk, J., was absent when this cause was considered.

VOL. XLV-60

A partner is entitled to an exemption from execution out of partnership prop erty, before severance.*

ETITION for exemption. The opinion states the facts.

PETITION

Peabody & Brannon, for plaintiffs in error.

Willis & Willis, for defendant.

CRAWFORD, J. W. O. Paschal, of the firm of Paschal & Heidingsfelder, filed his petition and schedule for homestead and exemption. Blanchard, Williams & Company, creditors, objected to the schedule, and disputed the value of the personalty. Upon the trial of the case in the Superior Court, to which it had been appealed, the jury rendered a verdict for Paschal. Blanchard, Williams & Company made a motion for a new trial, which was overruled, and they excepted.

* Contra, Spiro v. Paxton (3 Lea, 75), 31 Am. Rep. 630.

Blanchard v. Paschal.

1. The questions made by the record are, first, whether, if a portion of the personal property included in the schedule of applicant belonged to the firm of Paschal & Heidingsfelder at the time the same was levied upon, and no severance had been made by the partners at that time, he was entitled to an exemption in such portion?

This exact question has never been ruled by this court. In 57 Ga. 229 it was held, where each partner had applied for a homestead in partnership land, the same being assigned to them severally in separate parcels, a prior creditor, on reducing the debt to judgment, could not enforce the judgment over the homestead right.

In 59 Ga. 397 an injunction was refused to a partner who sought to enjoin the wife of another member of the firm from taking homestead in the partnership land, on the ground that the property was partnership property, and needed to pay partnership liabilities.

Again, it was ruled in 63 Ga. 586, that a homestead in the undivided half of the real estate belonging to a firm may be set apart to the wife of one of the partners, and such homestead will be valid against general creditors of the firm.

In the first case cited there had been a partition of the lands by the partners, between themselves, before the judgment. In the second case, where the injunction was refused, the homestead had been set apart out of the undivided half of the premises. In the third case it was also set apart out of the undivided half of the real estate belonging to the partnership.

In the case before us it was after the levy that the settlement or severance was had by the partners, and it is claimed that it was then too late for any act of the partners to affect the rights of creditors, or to authorize the exemption, even if the right existed before the judgment, until after the partnership debts had been paid.

The theory of the plaintiff in error is that the partnership property must go to the payment of the partnership debts, before any individual interest can exist, whereas, in fact and in law, the individual members of the firm are the real owners of the partnership property. And although the law directs how debts shall be paid, it never loses sight of the fact that a partnership is made up of individuals who own the assets. It is nevertheless true, that in

First National Bank of Americus v. Mayor, etc.

the absence of any legal provision giving a different direction to the disposition of the assets of a firm, they would have to be paid out as claimed. But here is interposed between this disposition of the property which an individual may have in a partnership, another overriding and superior right thereto, which no court or ministerial officer can disregard, and no officer has the jurisdiction or authority to seize or sell, except for certain specified debts, in which partnership debts are not included.

Unless therefore partnership property is to be appropriated to partnership debts, regardless of all individual rights, then whether the same was levied upon or not is wholly immaterial, as the judgment and levy can give the creditors no higher right as against an exemption and homestead than they had before.

Any other construction of the constitutional provision, and the laws passed in pursuance thereof, would be to put partnership debts upon a higher footing than individual debts, and on the same level with those excepted in the Constitution, as well as to deny the right of homestead and exemption to possibly one-fifth of the heads of families in the State, and who happen to be engaged in partnership pursuits. And the Constitution, in effect, would then be made to read, that each head of a family in this State shall be entitled to an exemption of personalty, and a homestead of reality, except partners, and they shall be excluded until they pay off and discharge all their partnership liabilities. [Omitting other questions.]

Judgment reversed.

SPEER, J., concurred on the question of partnership on the ground of stare decisis, but not as an original proposition.

FIRST NATIONAL BANK OF AMERICUS V. MAYOR, ETO.

To recover taxes paid to a municipal corporation it must appear that the tax was wholly unauthorized; that the amount was actually received by the corporation; and that it was paid under compulsion, to prevent the immediate seizure of sale of plaintiff's goods, or arrest of his person. Voluntary payment, accompanied by protest, will not suffice.

A

First National Bank of Americus v. Mayor, etc.

CTION to recover money paid for a tax. The opinion states the facts. The defendant had judgment below.

B. P. Hollis, for plaintiff in error.

Hawkins & Hawkins, for defendants.

SPEER, J. The First National Bank brought suit against the defendants, for the sum of $1,639, besides interest, alleging that petitioner was organized as a National bank association, and under the laws of the United States was empowered to carry on a general banking business in the city of Americus; that from the year 1872 to the present, by virtue of the authority aforesaid, petitioner has been engaged in the banking business in said city; that petitioner is expressly exempted from the payment of any tax upon its business of banking, or upon its capital stock, except such tax as it is required to pay the government of the United States, as provided by section 5214 of the Revised Code of the United States. Further petitioner alleges, that notwithstanding this exemption, the defendant wrongfully, and without any authority of law, has demanded of petitioner the sum of $100 per annum, as a license tax for carrying on the said business of banking in said city. Petitioner paid said tax under protest, and to avoid a seizure and sale of its property by said mayor and city council. Under this illegal assessment, it has paid the sums of $100 per annum from the year 1872 to 1877, inclusive, which was illegally extorted, as aforesaid, for carrying on said business, and which the Congress of the United States had expressly licensed. Further petitioner shows that in the year 1874, while engaged in said business, under the authority aforesaid, defendant assessed a tax of one per cent upon the capital stock of petitioner, making the sum of $639 which was illegal and void, as the same was not subject to taxation by said city. Petitioner protested against the payment of said sum, but to avoid a sale and seizure of its property by said mayor and council, did pay the said sum, in the year 1874, and the sum of $300 for the year 1875. Since the year 1875 it has urged upon said defendants the justice and equity of returning said sums, thus illegally assessed, but they now refuse to pay the same; wherefore petitioner brings suit, etc. To this declaration defendants demurred, which demurrer was sustained by the court, and plaintiff's action dismissed; wherefore plaintiff excepted, and assigns the same as error.