164 Ga. 798 | Ga. | 1927
Lead Opinion
G. B. McDuffie was tax-collector of Wilcox County for a part of the year 1919 and for the year 1920. He gave to the county the usual statutory bond as such officer, with the American Surety Company of New York as surety, the bond being limited to $20,000. McDuffie defaulted, and on September 3, 1923, the commissioners of roads and revenues of the county issued their
According to the record, there is but one question involved., and that is, where the tax-collector is indebted to the county over and above the amount named in iris bond as tax-collector, and a judgment is rendered against Man for the amount due by Mm, with interest at 20 per cent, per annum, as provided by law, is the rate of interest for which the surety is liable the same as the rate of interest against the principal, or is it to be fixed by the general rate of interest, 7 per cent, per annum? The court made the following ruling upon this question: “It is decreed that the fi. fa. issued by Wilcox County against G. B. McDuffie, tax-collector, and against Aaneriean Surety Coanpanjr, shall proceed, except that as against said American Surety Company the interest shall be no añore than seven per cent, per annum from the 3rd day of Septeanber, 1923.” Upon this ruling the plaintiff in error makes this exception: “Wilcox County further excepts to the final decree in said case, in so far as it decrees against the Americaai Surety Company of New York in favor of Wilcox -County only 7 per cent, per annum as interest from the 3rd day of September, 1923, and avers as a matter of law the interest charged should be 20 per cent, per aaanum.” The exception is well taken, and upon it the judgment of the court must be reversed. Practically the precise question involved has already been ruled on by this cooort. In the case of McWhorter v. Chattooga County, 154 Ga. 289 (114 S. E. 203), it was said: “Paragraphs 5 and 6 of the illegality raise the contention that the execution could not legally be issued and proceed to collect interest on the principal sum at the rate of 20 per cent, per annum from date, and for attorney’s fees. The ruling made in headnote 7 follows from our construction of certain provisions of our statute law embodied in the Civil Code. Section 1187 of the Code of 1910 declares: ‘If any collector shall fail to settle his accounts with the 'comptroller-general in terms of the law, he shall issue execution against him and his sureties for the principal amount, with interest at the rate of twenty per cent, per annum on said amount: provided, that if upon a final settlement it should appear that said collector was entitled to credits at the time he is required by law to settle, the comptroller-general may allow the
Paragraph 5 of the affidavit of illegality referred to in McWhorter v. Chattooga County, supra, was in the following language: “Because said execution issued for and is proceeding for interest on the principal sum thereof at the rate of twenty per centum per annum from date, against deponent and his said property so levied upon, and because said rate of interest and any other rate of interest upon said principal in excess of seven per centum per annum is unlawful, and deponent is not liable therefor in this behalf.” This was an affidavit of illegality to an execution issued against the tax-collector and the surety upon his bond for moneys claimed to be due the county, being taxes collected by the tax-collector. This direct ruling upon the question in this record renders a discussion unnecessary.
Judgment reversed.
Rehearing
A motion is filed by counsel for defendants in error in this case. It is therein contended that this court overlooked or disregarded the principle contended for by the defendants in error, that when the penal sum of the bond is reached or becomes exhausted, and demand has been made for the same and payment refused, it becomes a debt due, and legal interest is allowed only by way of damages for unjustly withholding the payment, just the same as any other debt. And movants also insist that the controlling question in the case is whether or not the penal sum of the bond can be extended by way of penalty at the rate of twenty per cent, per annum. It is said in the motion that the question above recited is, “the identical and direct issue raised in the exceptions filed by the county, and the McWhorter case, cited in the opinion, is no authority to sustain this proposition.” It is pointed out in the opinion, and it is still the opinion of this court, that the only question involved under the bill of exceptions, under the specific exceptions there made, is whether the court below erred in holding in its final decree that interest was to be computed at 7 per cent, per annum, and not at 20 per cent, as against the surety company. The language in the bill of exceptions is, “Wilcox County further excepts to the final decree in said case, in so far as it decrees against the American Surety Company of New York, in favor of Wilcox County, only seven per cent, per annum as interest from the 3rd day of September, 1923, and avers, as a matter of law, the interest charged should be twenty per cent, per annum.” The surety company raised no exceptions by direct or cross-bill of exceptions to the holding that interest should be computed from the 3rd day of September, 1923. There is no exception in the bill of exceptions filed by Wilcox County to the holding that interest should be computed from September 3, 1923. The rate of in-' térest was made the subject of attack in the bill of exceptions. And moreover, in a brief filed by the defendant in error it is expressly said: “If the court does not consolidate the two cases as requested, then the only question raised by the present bill of exceptions is because the court failed to charge the - surety company with interest at twenty per cent., and charged seven per cent.” Other questions might have been raised. Other exceptions might have been made; and the defendant in error might by direct
