Terrell v. Jolly

48 S.E.2d 517 | Ga. | 1948

The petition of the Solicitor of the City Court of Floyd County against the clerk of that court and others, seeking an accounting, injunctive relief, and a declaratory judgment directing the manner in which certain funds arising from fines and forfeitures should be distributed, failed to set forth a cause of action against the defendants, and the trial court did not err in sustaining general demurrers thereto.

No. 16233. JUNE 18, 1948. Vaughn Terrell, Solicitor of the City Court of Floyd County, filed in Floyd Superior Court against J. L. Jolly, the clerk of said city court, M. C. Horton, the sheriff, T. E. Edwards, a justice of the peace, C. O. Walden, the county treasurer, C. H. Porter, and Lamar Camp, who were formerly solicitors of the city court, J. F. Kelly, a former solicitor who is now judge of the city court, and against Floyd County, a petition which as twice amended alleged substantially the following: The petitioner has held the office of solicitor of the city court since January 1, 1945. He has on deposit in the Rome Bank Trust Company $11,707.10, which is subject to the order of the judge of the city court. He desires to pay the money over to the Treasurer of Floyd County, to be distributed under order of the superior court, and if any further sums are found to be due by him he will immediately pay the same. The money on deposit was received by the petitioner from the sheriff and the clerk of the city court, and was reported to him as having been collected by them for fines and forfeitures. Until approximately six months ago the petitioner did not adhere strictly to the statute in collecting all fines and forfeitures and disbursing the same, though he is chargeable with so doing; but a number of fines and forfeitures were collected and disbursed by the clerk and by the sheriff, and the petitioner has no complete statement thereof whereby he can make a complete accounting. The judge of the city court, ex parte and without legal proceedings, caused an order to be issued against the petitioner for the payment of certain sums, the correctness of said sums being disputed by the petitioner, and he is threatened with a proceeding for contempt of court for not obeying such order. The sheriff and clerk now hold moneys which are due to be received by the petitioner for the purpose of paying justices of the peace, constables, and other officers. The amounts so held by the sheriff and clerk are unknown to the petitioner but are well known to them. Named persons who formerly were officers of the court, and persons who purchased the insolvent lists of former officers, the names of many of the latter officers and the amounts due them being unknown to the petitioner, are claiming a right to participate in the fund. After satisfaction of all sums due the officers of court from said fund, and all other parties entitled thereto, Floyd County is entitled to any residue in the fund. For the petitioner's protection in the disbursement of the fund, and for the protection of the officers of court, and others, receiving the fund, as against future liability, it is necessary that a judgment be entered directing the petitioner as to whom the funds shall be paid, and that pending final adjudication the petitioner be permitted to pay to the county treasurer, subject to the final order of the superior court, the sum in his hands admitted to be due by him. The petitioner prepared a return for 1945, which he presented to Judge John W. Bale about July 1, 1946. Judge Bale refused to approve the return, stating that, since there had been no returns made for so long, it might cause trouble, but that he might approve it later. Thereafter the petitioner prepared a complete return for 1945, 1946, and through the June term, 1947, which, on October 24, 1947, he presented to Honorable Jas. F. Kelly, judge of the city court, for approval, and Judge Kelly refused to approve the same. Neither of the judges pointed out any error nor did either of them disapprove the returns. At the time the insolvent lists were presented to Judge Bale and Judge Kelly, they were disqualified to act thereon by virtue of the fact that they had a financial interest in any funds that might be paid into the county treasury, but such disqualification was not then urged by the petitioner. On November 28, 1947, the clerk paid to the county treasurer $2380.51, and on the same date the sheriff paid to the county treasurer $2734.95. These sums were paid as purporting to be funds from fines and forfeitures of the city court, but the petitioner was the sole custodian of the fund and was the sole disbursing officer thereof, and the same should have been first paid to him and by him paid to the county treasurer, under the order of the court. The sums are now general county funds, not having been paid in as insolvent costs, and the petitioner is entitled to recover these sums from the defendants, as well as such other sums as they may illegally hold, for disbursement. The petitioner brings this suit for a declaratory judgment in order that his accounts, and those of the sheriff and clerk, may be definitely determined with all officers entitle to participate in the fund. There is a bona fide contention existing between the petitioner and named defendants upon the following question: "Whether or not your petitioner is required to prepare and make a list of insolvent costs for all officers specifically named in this paragraph, except the judge of the city court, or whether they are required, under the provisions of 27-2902, 27-2903, and 27-2906, to prepare their own list of costs due them and present the same to the Judge of the City Court of Floyd County and secure his order of approval thereon, independent and separate from the approval obtained by your petitioner of his list of costs and order, and as to when such distribution can or must be made by him to the said officers from the fines and forfeitures coming into his hands." There is no adequate remedy at law for the settlement of the accounts, for the reason that the sole remedy by law is by rule to be brought against the petitioner, to which persons other than the one bringing the rule could not be made parties, and therefore no complete adjudication could be had, and there would be a multiplicity of suits; and further, the law as to the disbursement of the fund is not clear, either by statute or by the adjudications of the reviewing courts of this State.

The petitioner prayed: that process issue; that the defendants, Jolly, clerk, and Horton, sheriff, be required to file an itemized statement of all fees or costs received by them during the petitioner's term of office and from whom received, the amounts they are entitled to be paid, or the amount which they are indebted on account of fees or costs collected by them, and that, upon the trial of the cause, the court enter an order in accordance with the finding of fact based upon such statement; that, upon the determination of the amounts, if any, held by Jolly and Horton, received by them from fines and forfeitures, the petitioner have judgment in terms of the law; that an auditor be appointed to determine fully and completely and report thereon, with power to employ an accountant to assist in making up the accounts of the various parties; that the petitioner be authorized to pay to the county treasurer the $11,707.10 now on deposit to the order of the petitioner and the judge of the city court, to be disbursed by the county treasurer under the order of the superior court, and that the treasurer be both temporarily and permanently enjoined from paying out the same otherwise; that the court by declaratory judgment decree the duties of the respective parties named with respect to the making of returns for their own portion of the fines and forfeitures, to be paid under the provisions of the Code, § 27-2902, or whether a general insolvent list is to be prepared by the petitioner and filed for them, it being the claim of the petitioner that each officer must prepare and present his own claim for approval by the court before the petitioner is permitted to pay such officer any sum; that the court by declaratory judgment determine the validity of the insolvent-costs list held by C. H. Porter, Lamar Camp, T. E. Edwards, and J. F. Jolly; that the court adjudicate whether or not the City Court of Floyd County is governed by the laws applicable to solicitors-general of the superior court as to the distribution of funds, fines and forfeitures, and insolvent costs; and that the court grant such other relief as may be necessary to determine finally all matters of accounting between the petitioner and the defendants.

The exception is to orders sustaining separate demurrers filed by the defendants, Jolly, Horton, Walden, and Porter, and dismissing the petition as amended. Section 18 of the act approved September 27, 1883, (Ga. L. 1882-83 p. 535), creating the City Court of Floyd County declares: "That all moneys arising from fines and forfeitures . . shall be subject to the claims of the officers of said court, . . and shall be applied to the payment thereof under the laws and regulations governing the same in the superior courts of this State." Under the above act as amended (Ga. L. 1920, p. 329) the Solicitor of the City Court of Floyd County is on a fee basis, and under the express provisions of the original act he is governed by the laws applicable to solicitors-general of the superior courts as to the distribution of moneys arising from fines and forfeitures.

It is the duty of solicitors-general "to collect all moneys arising from fines and forfeited recognizances, all costs on criminal cases when paid into court before judgment, and not otherwise; and at the fall term of each court, every year, to settle with the county treasurer, and pay over to him all moneys due him according to law, after a fair and full settlement." Code, § 24-2908 (7). However, § 27-2902 allows the solicitor-general, out of the money collected from fines and forfeitures, to pay himself all the legal fees due him and the other officers of the court the fees due them, and to the justices of the peace and constables the costs due them in the particular cases by which the funds were brought into court, before he is required to pay anything into the county treasury. The Code, § 27-2903, declares that: "All moneys arising from such fines and forfeitures shall be, at each term of the court, distributed by the solicitor, under order of the court, to such persons and according to the priorities now prescribed by law; and on his failure to do so, he shall be subject to a rule at the instance of any party aggrieved."

The case under review involves a dispute between the Solicitor of the City Court of Floyd County, and other officers and former officers of that court, in reference to an insolvent-costs fund. The solicitor states in his petition that he has on deposit in a named bank a stated sum of money collected from fines and forfeitures; and prays that he be authorized to pay the money over to the county treasurer, to be disbursed by the county treasurer, under the order of the superior court, and that the treasurer be enjoined from paying out the same otherwise. The solicitor does not allege that any of the money should be used in paying his own fees, or those of the other officers of court or of the justices of the peace or constables in the particular cases by which the funds were brought into court.

"Where the solicitor-general has a surplus in his hands he can not be ruled by a former solicitor, not his immediate predecessor, and required to pay the surplus to the latter. Such surplus must be paid to the county treasurer, and the remedy of the former solicitor, if he has orders on the insolvent fund, is to collect his claims out of the county treasurer when the latter has funds available for this purpose." Bartlett v. Brunson,115 Ga. 459 (41 S.E. 601). See also Barron v. Terrell,124 Ga. 1077 (53 S.E. 181); Johnson v. Lastinger, 148 Ga. 656 (98 S.E. 78); Dade County v. Lyemance, 27 Ga. App. 420 (3) (108 S.E. 825).

While, as indicated above, it was the duty of the solicitor in the present case to collect all moneys arising from fines and forfeitures, yet since he states in his petition that he has a surplus which he desires to pay over to the county treasurer, he cannot complain because the clerk and the sheriff paid over to the county treasurer stated amounts which should have been turned over to the solicitor and by him paid to the county treasurer. This is true for the reason that equity will not require a person to do a useless act. The ruling here made is in accord with the decision in Wilson v. Harris, 40 Ga. App. 715 (151 S.E. 402), wherein the petition of a solicitor of the City Court of Floyd County, seeking to recover certain amounts alleged to have been paid by him to certain officers of court as insolvent costs in excess of the amounts to which they were entitled, was held to set forth a cause of action. The present petition does not allege that any demand has been made upon the clerk and sheriff to turn over to the solicitor any funds in their hands arising from fines and forfeitures, or that the clerk and sheriff have refused so to do.

The allegation that the judge of the city court, ex parte and without legal proceedings, caused an order to be issued against the solicitor for the payment of certain sums, the correctness of said sums being disputed by the solicitor, is not an averment that the judgment complained of, which was not set forth in the petition or attached as an exhibit thereto, was absolutely void. Under the recent decision of this court in Walden v. Smith,203 Ga. 207 (5) (45 S.E.2d 660), if the judgment is merely erroneous, it can be attacked, and the error corrected, only by appeal or by a direct proceeding to set it aside; while, if it be absolutely void, it is a nullity from the beginning and may be treated as such without further proceedings to have such nullity judicially declared.

Applying the above principles, the petition failed to state a cause of action against the defendants, and the trial court did not err in sustaining general demurrers thereto.

Judgment affirmed. All the Justices concur, except Bell andWyatt, JJ., absent on account of illness.