116 Ga. App. 252 | Ga. Ct. App. | 1967
W. T. Wellons, Sr., and L. E. Crook, Jr., paid $3,821 to Hoyt Lumpkin, a revenue officer employed by the Alcohol Tax Unit of the Department of Revenue, as a bribe with the intent to influence his action in the enforcing of the liquor laws of the State of Georgia. Lumpkin turned this sum of money over to his superior, J. M. Robinson, and Robinson delivered the money for safekeeping to the appellant, W. E. Strickland, Comptroller, Department of Revenue.
After pleading guilty to the crime of bribery, in Sumter Superior Court, Wellons and Crook were sentenced on February 11, 1967. On March 17, 1967, the trial judge signed an ex parte order declaring the money paid as a bribe to be contraband and ordering the appellant to deliver this sum of money to Mrs. Elizabeth Hartsfield, Treasurer of Sumter County. The record does not reveal that a petition, application or motion was filed to declare this money contraband, or that any notice was given to the appellants prior to the rendition of the judgment complained of.
From the final ex parte order entered by the Judge of Sumter Superior Court, appellants filed their notice of appeal. Held:
The ex parte order entered by the court, declaring the money received by the State Revenue Officer to be contraband, was tantamount to a judgment in rem. No consent was given by the State for such order to be entered and it was therefore void. “The rule [that a State cannot be sued without its consent] not only relates to actions in personam but extends to actions in rem against money or property of the State, where the judgment will affect the State’s control over or diminish its property or assets by enforcing a liability against the same.” Florida State Hospital v. Durham Iron Co., 194 Ga. 350, 352 (21 SE2d 216).
Furthermore, no notice was given the State or its official as provided by Code Ann. § 3-116 (Ga. L. 1956, p. 625).
Judgment reversed.
