Dudley v. Chilton County

66 Ala. 593 | Ala. | 1880

BRICKELL, C. J.

A bill of exceptions, when signed, becomes a part of the record. After the adjournment of the term, the presiding judge can not, in vacation, make in it any change or alteration. It is as completely beyond his control as is the judgment-entry, or other parts of the record. The judge was in error, in adding to the bill the words now moved to be stricken from it, The error is harmless, however, for the bill as it was written and signed would bear the construction that it contained the substance of all the evidence introduced on the trial, in the absence of these words,

The bonds of all public officers, unless it is otherwise provided, must be made payable to the State of Alabama. Code of 1876, § 168. There is no statutory provision, requiring the bond of a tax-collector to be made payable otherwise ; and of consequence, there was no force in the objection to the introduction in evidence of the bond of the collector, that it was payable to the State. It could not properly have been payable otherwise. On all such bonds, the person aggrieved, by the wrongful act or negligence of the officer, has the right, and must sue in his on name.—Morrow v. Wood, 56 Ala. 5.

The bill of exceptions is rather obscure in its statements, when construed in connection with the instructions given and refused, as to the character of the book styled the “Assessor’s Book,” which was received in evidence. Whatever of obscurity or doubt there may be, must be resolved against the ex^ ceptant, and in favor of the ruling of the court. One of the duties of the tax-assessor is to make in a book a condensed statement of the assessment, and to deliver it to the probate. judge. — Code of 1876, § 389. The book then becomes an official and public document. When the assessment has been corrected by the Court of County Commissioners, the probate judge is required to make a book, containing in concise form the amount of taxes due from each tax-payer, and. turn it over to the tax-collector. — Code of 1876, § 135. This book is, also, a public, official document. If, as is insisted, it be true, it was the first of these books which was received in evidence, we are not prepared to say it was wholly irrelevant. The probate judge may not have made the second book ; and if he had not, the first book would have been important to show the amount of taxes assessed, — a fact it may have been necessary to prove in showing the amount of the . county tax the collector would have collected. The second book, that the probate judge is required to make, it is conceded, would have been admissible in evidence. If it were necessary, construing the bill of exceptions most strongly against the party excepting, rather than place the primary court in error, we would intend, in the face of a mere general objection, from the uncertainty and obscurity of the statement of the bill, that it was this book which was offered and admitted.

There is no just objection to the admission of the book of the county treasurer, showing the payments on account of the county tax made to him by the collector. The book he is required to keep ; all entries therein are made under the sanction of his official oath, and in performance of official duty. All such books and entries are prima facie evidence of the facts stated in them. — 1 Whart. Ev. §§ 630-40.

The instructions given the jury seem free from error, and adapted to the evidence. The instructions requested could probably have been given, without affecting the result of the trial; but the court was justified in refusing them. The proceeding is statutory and summary — in derogation of the common law. By construction, the remedy cannot be extended beyond the terms of the statute. By the words of the statute, the remedy is confined to money the tax-collector has received or collected for the county, and failed to pay over to the county treasurer. — Code of 1876, § 3396. It cannot be extended to the recovery of damages for negligence in failing to collect money, which by the use of due diligence the collector ought to have received and paid into the county treasury. If there had been an effort to charge the collector because of such negligence, the instructions requested would have been probably appropriate. No such effect was, or could have been made, under the notice and motion, averring a failure to pay over money collected, and without any averment as to a failure to collect.

There was no conflict in the evidence : it was all introduced by the appellee. It was not necessary that' the evidence should have shown, with mathematical or arithmetical precision, the sum of money the tax-collector had received and failed to pay over to the county treasurer. Such certainty is, ordinarily, not attainable, and all the demands of right and justice are satisfied, when the evidence'is sufficient to lead the minds of the jury to a particular conclusion.—Godbold v. Blair, 27 Ala. 592; Hopper v. Ashby, 15 Ala. 457. The precise amount of the county tax was shown; the period for the collection of the tax had passed; the collector could have claimed no deductions, save so far as he had been allowed for errors or insolvencies by the Court of County Commissioners, and the amount of such allowances was shown; and the payments he had made to the county treasurer were also shown. The presumption must obtain, in the absence of all opposing evidence, that he had performed his duty — had collected, within the period allowed by law, all the tax, save so far as he had claimed and obtained credit for errors in assessment, or because of the insolvency of the tax-payer. . If the several instructions requested had been given, their direct tendency would have been to confuse the jury, or to mislead them. All such instructions are properly refused. The jury, from them, would probably have inferred, or could have inferred, that there was some deficiency in the ease made by the plaintiff, or that they could draw inferences the evidence would not warrant.

Affirmed.