Duer v. Thweatt

39 Ga. 578 | Ga. | 1869

Brown, C. J.

I. The costs due clerks and sheriffs in this State, in insolvent criminal cases, are a debt due by the public. But the only general provision made by law for their payment is that they be paid out of fines and forfeitures, collected in their respective counties, according to the priorities established by law.

An order passed by the Superior Court, allowing a certain sum to the Clerk for costs in insolvent criminal cases, is a judgment of a Court of competent jurisdiction over the persons interested and the subject matter, which cannot be attacked collaterally in a subsequent litigation between the Clerk and the county as to the amount due. If the Ordinary, representing the county, desires to attack the judgment, he must do so, at the proper time, by a proper proceeding instituted for that purpose. He cannot attack it collaterally on the trial of such an issue as is made by this record. This is no new principle in this Court. It has been repeatedly ruled that when a Court of competent jurisdiction has rendered a judgment in relation to any subject matter within its jurisdiction, the presumption is that it had before it sufficient evidence to authorize it to award such judgment, which judgment will be conclusive until reversed, in a proper proceeding instituted for that purpose, in the Court in which the judgment was rendered. 9 Ga. R., 117, 247; 10 Ga., 371; 8 Ga., 143; 16 Ga., 578; 20 Ga., 90; 20 Ga., 581; 24 Ga., 335.

2. In this case it was, no doubt, the intention of the Legislature that the county should pay whatever balance might be due the Clerk after the fines and forfeitures were exhausted, and that a sufficient tax be assessed and collected immediately for that purpose. The debt being a debt due by the public, and the county being a subdivision of the State, it was perfectly competent for the Legislature to provide that the deficiency in the public fund, out of which the debt was to be paid, be made up by the county. This made the county a party, or at least a privy, in the case. And it is a well settled rule that privies as well as parties are bound by the judgment of the Court. All who are in fact, or in consideration of law, privies, are bound by the judgment, 13 Georgia, 269; and I am very clear that the county in this case, was, if not a party, a privy, in contemplation of law. It was, in fact, a party with notice of the proceeding in which the judgment was rendered, and of its rendition.

3. The Ordinary who is the representative of the county, was in Court when it was rendered. And it was rendered after the passage of the Act making the county liable for the costs due the clerks and sheriffs in insolvent cases. It seems to me there can be no dispute that the county was a party at interest from the passage of the Act of 1868. But the Ordinary testifies that the Judge who passed the order told him it would not bind the county. That is not a sufficient legal excuse. The Ordinary was bound, at his peril, to know the effect of the judgment; and if the Judge was mistaken in its effect, he should have objected to its rendition, or taken the proper steps to have it reversed or set aside. Having failed to do so, I think the Judge below committed no error in charging the jury, that said order being unrevoked and unannulled, he considered and so charged, that it was binding and conclusive, on the trial of this issue, as to the fact that the insolvent criminal costs were due the plaintiff as administrator, and that if the jury believed the order remained unrevoked and unpaid, it would be their duty to find for the plaintiff.

Judgment affirmed.