Gaston v. Shunk Plow Co.

Lead Opinion

Hines, J.

(After stating the foregoing facts.)

It has been held by this court that a traverse of an answer to a proceeding for criminal contempt, committed out of the presence of the court, is not required, and that the court can proceed to determine in the usual way whether the facts show that the party charged is guilty of disobedience of the order of the court. Carson v. Ennis, 146 Ga. 726 (92 S. E. 221, L. R. A. 1917E, 650). We can see no reason why the same principle is not applicable in a remedial proceeding for contempt. While this court in the ease cited did not refer to the provisions of §§ 5346 and 5347 of the Civil Code, its ruling settles the point that no traverse of the answer is necessary, and that the court can, without such traverse, hear evidence to determine whether the defendant has or has not violated the order of the court. Furthermore, if these sections of the Code were "applicable, the contemnor did not set up in his answer as amended a complete defense. Construing his answer most strongly against him, as we are bound to do under the familiar principle that pleadings are to be taken most strongly against the pleader, the defendant does not allege full compliance with the judgment in the mandamus case. In effect he only pleads that he had levied a tax sufficient to discharge the principal due on these warrants, and then sets up facts tending to show that he was not guilty of a contumacious disregard of the order of the court, and for this reason should not be punished for his failure to fully obey the order of the court. For these reasons the judge did not err in overruling his motion to dismiss the proceedings, upon the conclusion of the introduction of the evidence of the plaintiffs, upon the ground that his sworn answer had not been traversed.

Did the trial judge err in rejecting the amendment to his answer offered by the defendant? We think not. As we hold later, the judgment in the mandamus proceeding required the commissioner to levy a tax sufficient to discharge the principal and interest due on thése warrants. If the commissioner failed to do this, he violated the judgment of the court, and was subject to be attached for contempt of court. In this amendment the defendant does not allege that the levy of three mills was sufficient to discharge the principal and interest due upon the warrants dealt with in the mandamus case. If this allegation had been made, a different question would have been presented; but we construe this amendment to mean that this levy raised sufficient funds to pay the principal of the warrants referred to in the petition and the answer of the defendant thereto in the mandamus proceeding. This being so, this amendment set up no defense to the contempt proceeding, and the court did not err in rejecting the same. Smith v. Lott, 156 Ga. 590 (119 S. E. 400, 30 A. L. R. 145).

It is next urged by counsel for the plaintiff in error, the defendant in the court below, that issuable facts were involved in this case, and that the court erred in passing upon the issues of fact without a jury. Every court has power to compel obedience to its judgments, orders, and processes, and to the orders of the judge out of court in an action or proceeding therein. Civil Code (1910), § 4644. In a proceeding for contempt against the defendant, growing out of his alleged violation of a mandamus absolute, is he entitled to a trial by a jury when an issue of fact is raised? Such right, if it exists, must be found either in the constitution or some statute of this State. The constitution declares: “The right of trial by jury, except where it is otherwise provided in this constitution, shall remain inviolate.” Civil Code (1910), § 6545. In this State a party has no right to a trial by a jury in an equity case. Lamar v. Allen, 108 Ga. 158 (4) (33 S. E. 958). In Thompson v. Turner, 69 Ga. 219, this court held, that, “Ordinarily, whether a contempt has been committed by violating the process or decree of a court of chancery is a question for the chancellor.” The court further said: “It may be that he can submit pure questions of fact to the decision of a jury.” In Kingsbery v. Ryan, 92 Ga. 108 (17 S. E. 689), it was said: “It has always been within the power of a court of chancery to call a jury to aid the chancellor in arriving at the truth when there are disputed issues of fact. Indeed, such has been the usual practice.” In Tindall v. Nisbet, 113 Ga. 1114 (39 S. E. 450, 55 L. R. A. 225), it was held in a contempt proceeding: “Whether the receiver is or is not unable, by proper effort, to restore a fund entrusted to his keeping as an officer of the court, and which he has willfully misappropriated, is, both at common law and under our statute, a question which may be determined by the presiding judge, and is not one which is required to be submitted to a jury.” In the opinion in that case it was held that the case did not fall within the terms of § 4643 of the Code, which provides for trial by jury before any person can be imprisoned for contempt for failing or refusing to pay over money under any order, decree, o.r judgment of any court of this State, when he denies that the money ordered to be paid over is in his power, custody, or control. It has been held that the defendant in a proceeding for contempt for failure to comply with an order requiring him to pay alimony is not entitled to demand a trial by a jury. Lee v. Lee, 97 Ga. 736 (25 S. E. 174); Stokes v. Stokes, 126 Ga. 804 (55 S. E. 1023). In re Fite, 11 Ga. App. 665 (76 S. E. 397), the Court of Appeals held that “To try a case of contempt without the intervention of a jury violates no constitutional provision.” The above provision, of the constitution preserves the right of trial by a jury as it existed at common law. Jernigan v. Garrett, 155 Ga. 390 (117 S. E. 327). The right to trial by a jury, unless extended by statute, applies only to actions proceeding according to the course of the common law, and not to special proceedings of a summary character. 35 C. J. 178, § 62. So the right to a trial by a jury in a contempt proceeding was not conferred by the above provision of the constitution. There is no statute in this State which gives to a party the right to trial by a jury in a proceeding for contempt by a court to force obedience to its order, judgment, or process. This being so, the court did not err ih trying any issue of fact, if such there be, in this proceeding, without the intervention of a jury. Dennard v. Farmers & Merchants Bank, 149 Ga. 837 (102 S. E. 356).

The contemnor next asserts that the court “erred in rendering judgment on any question but that of contempt, for the reason that a rule nisi for contempt, and for no other cause, was tried.” In other words, he complains that the judge erred in those parts of his judgment in which he directed and commanded him to pay to the Commercial Credit Company all amounts, both principal and interest, -due on these warrants, after deducting therefrom the sum of $3,041.60, which is decreed to be due the Continental' Trust Company out of said warrants, and to be charged to the Commercial Credit Company as of date May 15, 1916, said amounts to be paid instanter out of any available funds of the county, and, if none, then out of any available funds that may come into the treasury of the county during 1925, and, if no funds are received during said year available for such payment, then the defendant is directed and commanded to levy a special tax for the year 1926 expressly for the purpose of paying the balance due on these warrants to the Commercial Credit Company. The basis of this complaint is that these portions of the judgment are not authorized by the pleadings. While the language of the judgment is not entirely felicitous, in that it commands the commissioner to pay the above amounts to the respective claimants, when the duty of payment does not rest upon that officer, but only the duty of levying a sufficient tax to raise funds enough to pay thése claims, we think that the meaning of the judgment, when reasonably construed, is sufficiently plain, and, when so construed, does not fall beyond the bounds of the pleadings and the evidence. The judge found that, under the judgment in the.mandamus proceeding, it was the duty of the commissioner to levy a sufficient tax to pay both the principal and the interest due on these warrants, that the commissioner had failed to discharge this duty, that therefore he was in contempt of the court, that such contempt was not contumacious and did not require punishment, and that the commissioner would purge himself of contempt by levying a sufficient tax to discharge the balance of principal and interest due on these warrants, if there were 'not at that time sufficient funds in the treasury, or if sufficient fund's did not come into the coffers of the county «during the year 1925 to pay off these warrants; but if he failed to carry out this judgment of the court, that then the court would further deal with the matter of his contempt and would make such further order as might be authorized to enforce compliance thereafter. With this construction of the judgment and in this view of the case, the judge did not err, for the reason alleged, in the judgment rendered.

We do not think that the judge erred in receiving and considering the Alston affidavit. This affidavit was submitted under 'an agreement by which either party could,submit additional evidence after the conclusion of the hearing before the judge; and there does not appear to be any su.ch irregularity in the reception and' consideration' of this affidavit as amounts to error. Under this agreement both parties, after the conclusion of the hearing, submitted additional evidence in the shape of affidavits and documentary proof to the judge. In view of this agreement, and in view of the fact that nothing otherwise improper appears to have been done in its reception and consideration, we do not think that the judge erred in receiving and considering this affidavit.

We come now to consider the assignment of error that the court erred in finding that interest was payable on these warrants, and in directing interest to be paid thereon. The agreement of the county to pay interest upon these warrants is a valid and enforceable agreement; and such interest is collectible upon the same terms and in the same manner as the principal. Hartley v. Nash, 157 Ga. 402 (121 S. E. 295). The further contention of the plaintiff in error is that the judgment in the mandamus case did not provide for the payment of interest, but on the contrary only provided for the payment of the principal of these warrants, and for this reason the judge erred in directing the payment of principal and interest on these warrants. That judgment does not expressly provide for the payment of the principal only. It certainly does not provide expressly that interest should not be paid. The conclusion that that judgment provides for the payment of principal only, and not for the payment of principal and interest, is an inference drawn from the facts and circumstances aliunde' the record. In the first place it is insisted that at the time of the rendition of the mandamus judgment it was the general opinion that county warrants did not bear interest. It is further insisted that this common opinion was based upon decisions rendered by this court in the cases of Lettice v. American National Bank, 133 Ga. 874 (67 S. E. 187), First National Bank of Rome v. Owens, 147 Ga. 599 (95 S. E. 2), Tift & Peed Grocery Co. v. Worth County, 150 Ga. 319 (103 S. E. 465), which were considered and distinguished in Hartley v. Nash, supra. It is next urged that the judge who rendered the judgment in the mandamus case did not think that interest was payable on county warrants. It i's next stated that the judge who rendered that judgment deposed by affidavit in the present case that it was agreed that interest was not to be paid upon the county warrants involved in that ease. It further appears that the same judge instructed the commissioner and the county treasurer not to pay interest on these instruments. It further appears that in a supplementary order, made subsequently to the mandamus judgment, and in the mandamus case, provision was made for the payment of interest on a county warrant held by another claimant and involved in the mandamus case. From these facts and circumstances the deduction is drawn that the judgment in the mandamus case provides only for the payment of the principal, and not for interest on these warrants. We do not think that this deduction is sound. It must be borne in mind that the holder of these warrants was not a party to the mandamus proceedings, and for this reason is not estopped by any agreement made by the parties to that proceeding at the time the judgment therein was rendered. The judgment can not be contradicted, varied, or added to by parol evidence. It can not be shown by such evidence that the judge intended to render a different judgment from the one actually rendered. If there were ambiguity in his judgment, which rendered its meaning doubtful, parol evidence might be admissible to explain and remove the ambiguity.

It must be further borne in mind that the purpose of the mandamus proceeding was not to obtain a judgment against the county, fixing the amount of principal and interest due on these warrants, but the sole purpose of that proceeding was to compel the commissioner to levy a tax for their payment. That proceeding was brought by the Shunk Plow Company against the commissioner, to compel him to levy a tax to pay two warrants held by it against the county. The commissioner in his answer to that proceeding set up that there were various outstanding warrants against the county, against which there was no defense. He attached to his answer a list of these warrants, which included those involved in this case. He stated that many of these warrants bore interest at the rate of 7 per cent, per annum. The warrants involved in this case expressly provided on their faces for the payment of interest at this rate. The commissioner asked the court to pass orders making the county treasurer a party to the case, and requiring the commissioner to levy a special and extra tax for the years named in his answer for the purpose of paying off these valid warrants against the county. He did not allege or intimate that interest was not payable on these warrants. On the contrary he expressly stated that there was no legal reason why the same should not be paid. The interest thereon was a part of the legal indebtedness of the county to the holders thereof. In accordance with the wishes of both parties to the mandamus proceeding the judge rendered judgment in which he directed the commissioner to levy a sufficient tax each year for four years to pay “the admitted legal and binding past-due indebtedness of the County of Butts, . . as set forth in the present petition and answer of the defendant, J. 0. Gaston, wherein are set out the warrants and amounts admitted to be due, and for the payment of which this order is granted.” It was further ordered that each yearly levy should be “ample and sufficient to pay oil one fourth of the said warrants and indebtedness scheduled in the defendant’s answer and the 'plaintiff’s petition.” It' was held in Hartley v. Nash, supra, that the interest was as much a part of the indebtedness represented by these warrants as was the principal. So it seems clear that the judgment in the mandamus ease provided for the levy of a tax sufficient to pay both the principal and interest due on these warrants; and that the trial judge in the instant case did not err in so finding and holding.

It is next insisted that the judge below erred in directing and commanding the commissioner to pay the principal and interest due on these warrants, on the ground that the county had been enjoined from paying these warrants, in the suits brought by the Continental Trust Company in Butts superior court, and in the II. S. district court for the Southern District of Georgia. The petition in Butts superior court was filed on December 18, 1916. In that suit an injunction was of force during its pendency, prohibiting the collection of the amounts due on these warrants. The suit in the IT. S. district court was filed on April 17, 1919. In that suit the Commercial Credit Company was restrained from receiving any money from the County of Butts or any officer or agent thereof on these warrants; and it was further provided that the status of these warrants should be preserved by all the parties in the ease until the further order of the court. The restraining order in the former of these cases remained in full force until December 12, 1918. The restraining order in the latter was granted after that date, and remained in force until December 26, 1923. The county and its commissioner insist that the county is not liable for interest on these warrants during the pendency of these restraining orders, for the reason that they were thereby restrained and prevented from paying over the money on these warrants to the holder thereof. The defendants in error contend that the comity is liable for interest on these warrants,' because the county was not enjoined from paying the warrants, as these restraining orders only prohibited the holders thereof from collecting the same. It is true that these restraining orders did not expressly enjoin the county from paying these instruments; but the holders thereof were enjoined from collecting the same. The county and its commissioner were both parties to these suits. The effect of the restraining order was to prevent the county from paying these warrants to the holder thereof. The status of the warrants could not be changed by the parties to these suits. Enjoining the holders of the warrants from receiving payment from the county effectually prevented the county from paying the same. In these circumstances, is the county chargeable with interest on these warrants during the pendency of these restraining orders? Persons who are prevented from paying over money by process of the court, such as writs of injunction and the like, are not liable for interest. This is so because it would be unreasonable for the law to forbid a thing to be done and then to mulct the party in damages in an assessment of interest for not doing it. The law works no such injustice, and is chargeable with no such absurdity. The whole doctrine of interest is based upon the idea that it is a profit or premium properly payable for the use of money which one man has of the money of another; Georgia Ins. &c. Co. v. Oliver, 1 Ga. 38, 40; Little v. Owen, 32 Ga. 20; Georgia R. &c. Co. v. Wright, 125 Ga. 589, 613 (54 S. E. 52), 16 Am. & Eng. Enc. L. (2d ed.) 1068; 33 C. J. 246, § 157; Civil Code (1910), § 5290. So there can be no allowance of interest on a fund in the hands of the court or its receiver, or that is being brought in by the receiver, unless the fund produces interest. Johnson v. Moon, 82 Ga. 247 (10 S. E. 193).

So the county was not liable for interest on these warrants during the period of the pendency of the interlocutory injunction in the case in Butts superior court, and in the one in the IT. S. District Court, these periods extending from December 18, 1916, to December 12, 1918, and from April 17, 1919, to December 26, 1923; and the trial judge erred in allowing.interest on these warrants during that period. Eor this reason we reverse the judgment of the court below.

Judgment reversed.

All the Justices concur.

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Concurrence Opinion

Beck, P. J., and Hill, J.,

concur in the judgment of reversal in this case, but dissent from the ruling in the 6th headnote and the corresponding division of the opinion, for the reasons stated in the dissenting opinion in the case of Hartley v. Nash, 157 Ga. 402. (supra).

Case Details

Case Name: Gaston v. Shunk Plow Co.

Court Name: Supreme Court of Georgia

Date Published: Nov 14, 1925

Citation: 130 S.E. 580

Docket Number: No. 4986

Court Abbreviation: Ga.