Interposition of claims; oath; bond; trial.

When any execution is issued against a tax collector, tax commissioner, or taxpayer for taxes due the state or a county of the state and the sheriff or other officer levies the execution on property claimed by a person not a party to the execution, the claimant shall make the same oath as required in other claim cases and give bond and security for the amounts claimed in the execution plus costs. The same proceedings shall be had on the claim as are provided for the trial of the right of property, except that the trial shall be held in the county in which the levy was made. If the property is found to be subject to the execution, the liability of the claimant and his sureties shall be in all respects the same as the liability on an appeal bond. History. Laws 1810, Cobb’s 1851 Digest, p. 1056; Laws 1840, Cobb’s 1851 Digest, p. 1072; Code 1863, §§ 818, 3657; Code 1868, §§ 898, 3682; Code 1873, §§ 896, 3732; Code 1882, §§ 896, 3732; Civil Code 1895, §§ 899, 900; Civil Code 1910, §§ 1159, 1160; Code 1933, § 92-7801; Code 1933, § 91A-328, enacted by Ga. L. 1978, p. 309, § 2. JUDICIAL DECISIONS For discussion of distinction between claims under ordinary judgments and under tax fi. fa., see Lingo v. Harris, 73 Ga. 28, 1884 Ga. LEXIS 7 (1884). What claimant may contest. — Claimant may set up invalidity of the fi. fa. on the trial of the claim case. Claimant may also contest the validity of a levy on the contention that it is an arbitrary and unreasonable division. Harris Orchard Co. v. Tharpe, 177 Ga. 547, 170 S.E. 811, 1933 Ga. LEXIS 353 (1933). Filing claims to property levied on under city tax execution. — No provision for filing a claim to property levied on under a city tax execution is contained in this statute, and before such a claim can be recognized, provision therefor must have been made in the charter of the municipality concerned. Wilson v. City of Eatonton, 180 Ga. 598, 180 S.E. 227, 1935 Ga. LEXIS 500 (1935). Claim under this statute is not available when the property is subject to the fi. fa. levied thereon. Jordan v. Baggett, 37 Ga. App. 537, 140 S.E. 902, 1927 Ga. App. LEXIS 398 (1927). Right of claimant to proceed in equity. — When the petitioner has an adequate and complete remedy at law by filing of a claim in the event of an attempted sale of the property, the petitioner is not entitled to an injunction. Racine Iron Co. v. McCommons, 111 Ga. 536, 36 S.E. 866, 1900 Ga. LEXIS 676 (1900); Herrington v. Ashford, 157 Ga. 810, 122 S.E. 197, 1924 Ga. LEXIS 256 (1924), overruled, Wilson v. Eatonton, 180 Ga. 598, 180 S.E. 227, 1935 Ga. LEXIS 500 (1935); Kirk v. Bray, 181 Ga. 814, 184 S.E. 733, 1936 Ga. LEXIS 443 (1936). Statute makes no provision for filing of a claim in a case of a levy of a city tax execution; it refers exclusively to state and county taxes. Therefore, in a suit to enjoin enforcement of a tax execution issued by a city and levied upon property in which the plaintiff, not the defendant in fi. fa., alleged an interest, the plaintiff did not have an adequate remedy at law, and the petition stated a cause of action. Wilson v. City of Eatonton, 180 Ga. 598, 180 S.E. 227, 1935 Ga. LEXIS 500 (1935). When the petition alleges that the petitioner did not know of the tax sale until several months thereafter, and had been repeatedly advised by the defendant in execution that the taxes had been paid, there is sufficient reason for failure of the petitioner to pursue its remedy at law under this statute. Therefore, the petitioner can seek relief in equity. Bibb County v. Elkan, 184 Ga. 520, 192 S.E. 7, 1937 Ga. LEXIS 561 (1937). No claims in forma pauperis. — Claim cannot be interposed in forma pauperis to property levied on under a tax execution issued by a municipal corporation. Such claims must be made under the provisions of former Civil Code 1882, § 896 (see now O.C.G.A § 48-3-24), and did not fall within former Code 1882, § 3733 (see now O.C.G.A. § 9-13-92). Lingo v. Harris, 73 Ga. 28, 1884 Ga. LEXIS 7 (1884). RESEARCH REFERENCES C.J.S. 33 C.J.S., Executions, §§ 60, 328 et seq. 85 C.J.S., Taxation, §§ 1144, 1145, 1164.