21 S.E.2d 713 | Ga. | 1942
Lead Opinion
Affirming, on certiorari, the ruling of the Court of Appeals in this case.
1. The act creating the municipal court of Atlanta fixed the duties of the clerk as the same as those of the clerk of the superior court. Ga. L. 1913, pp. 145, 155, § 23. Among others is the duty "to receive . . all . . sums whenever required to do so by law, or order of the judge, and not otherwise." Code, § 24-2720. If the clerk receives "any money on any suit or judgment . . and . . [does] not faithfully account for it," he is "liable to rule as sheriffs are, and" he and his "sureties are likewise liable on their official bonds." § 24-2722. The sole compensation of the clerk is salary payable by the county, and he is inhibited to "receive to his own use any fees or perquisites of office." Ga. L. 1913, pp. 145, 153, 156, §§ 16, 23. Under these laws, moneys incidentally coming into the hands of the clerk from parties to cases in court are deposits for safe-keeping to meet the requirements of the orders or judgments of the court.
2. The duties of the clerk with respect to such deposits are purely ministerial. His actual possession of the money, arising from its receipt from the party paying it in, is not in his own right, nor does he acquire an individual interest. Neither does he acquire authority to substitute for the court a different depository, or to speculate by putting the money out at interest, thereby taking risk of a loss. If he does so, and collects interest under color of his office, such interest should be regarded merely as enlargement of the original deposits, and not for his individual enrichment. This accords with the principles stated in Ricks v. Broyles,
(a) The instant case, involving authority of the clerk to put out at interest money held in custody of the court, and to apply to his individual use interest so received by him, stands on a different basis from Phillips v. Lamar,
(b) It is fair to say in the instant case that the judge, to whom the case was submitted without a jury, was authorized to find that the clerk did not intend to apply the fund in question to his individual use.
3. The stipulation of the executrix of the deceased clerk and the successor clerk, as to impossibility of establishing claim for interest by any parties who deposited such funds with the clerk, would not be binding upon those making such deposits, or other possible claimants, who were not parties to the case and did not join in the stipulation; but neither the fact that such a claim is not likely to be asserted, nor its possible invalidity upon any ground if asserted, would confer upon the clerk any personal right to such interest fund, or enure in anywise to his benefit as such a claimant.
4. The foregoing sufficiently deals with the controlling questions in the case. Regardless of the reasoning on which the Court of Appeals based its decision, the judgment of that court was correct, and must be affirmed. The assignments of error in the petition for certiorari were by the executrix, and, under the foregoing principles, do not require a reversal of the judgment of the Court of Appeals.
Judgment affirmed. All the Justices concur, except Reid, C.J., and Grice, J., who dissent.
Dissenting Opinion
My dissent is predicated on a view somewhat different from that expressed by Justice Grice. The moneys from which the interest arose were not public funds, but belonged to private persons. It is true the clerk was custodian by virtue of his office. He, although an insurer, did not in my opinion take title to the funds so deposited with him. But the only duty resting on him was their safekeeping. He met every demand of the law when he at the proper time accounted for that which was turned over to him. It is conceded that the clerk has done exactly that in this case. He did not, as I see it, loan the money out in the ordinary sense or use it in speculation for personal gain. He did not convert it to his own use, nor did he violate any law or duty in making the deposit in the bank. He kept it carefully segregated, apart from any personal funds; and while the account was in his name merely "as clerk," it at least showed an intention to separate it from personal funds. True, he might have kept it in a safe or rented a safety-deposit box, the expense of which would have been on him. He might have had it insured or taken an indemnity policy to protect him. It is also to be noted that this interest was received on the aggregate of such funds separately deposited with him, and which, separately, might not have earned interest. Even if in the broad, general sense, this custodian should be regarded as a trustee, the measure of his liability is wholly different from the ordinary trustee dealt with in Perdue v. McKenzie, supra. His duties are entirely different, and here he has violated none. If any person could claim this interest, it would be only the person to whom belongs the identified fund which earned the interest. The successor clerk is neither responsible for nor entitled to such funds. *406
Addendum
The rulings in Lamb v. Dart,