United States Fidelity & Guaranty Co. v. Toombs County

• Decision Date: 16 February 1939
• Docket Number: 12637.
• Citation: 1 S.E.2d 411,187 Ga. 544
• Court: Georgia Supreme Court
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. TOOMBS COUNTY.

1 S.E.2d 411

187 Ga. 544

UNITED STATES FIDELITY & GUARANTY CO. v. TOOMBS COUNTY.

No. 12637.

Supreme Court of Georgia

February 16, 1939

[Copyrighted Material Omitted]

Syllabus by the Court.

1. As the law stood prior to the passage of the act approved March 16, 1933, Georgia Laws 1933, p. 78, Code 1933, § 89-801 et seq., the official or officials exercising control over the fiscal affairs of a county had the power to issue without notice an execution against the sheriff and his surety for money collected and unaccounted for.

2. The law as it stood prior to the passage of the act of March 16, 1933, provided that when a fi. fa. issued against a sheriff and his surety for public monies collected by that officer and not paid over to the proper authorities, the amount named therein is due by the officer and the burden is on him and his surety to show that the fi. fa. is invalid or inoperative in whole or in part. Nor does the said act purport to change in substance this rule.

3. The act approved March 16, 1933, entitled 'an act to make provisions as to public monies of the State and of its political subdivisions,' etc., and codified in the Code as § 89-801 et seq., was intended to have retrospective application.

4. A statute of limitations looks only to the remedy, and accordingly will be upheld as against contracts entered into before its enactment, provided a reasonable time subsequent to the passage of the act be allowed for the citizen to enforce his contract or protect his right.

(a) Section 11 of the act aforesaid, codified as Code, § 89-832, provides a reasonable time within the meaning of the rule stated in the preceding headnote.

5. If in any case there be as between the provisions of Code, § 3-703, which allows twenty years in which to bring an action upon a bond under seal, and the provisions of Code, § 89-832, a conflict, the latter section must prevail, it being derived from the later act.

6. Under Code, § 89-832, a surety, in an effort by an equitable petition to arrest the enforcement of an execution issued ex parte against it and its principal, has the right to plead, as a valid reason why the execution should not, proceed as against it, that the cause of action accrued more than three years before the date of the execution.

7. Ordinarily a right of action has its inception from the time there has been a breach of duty. When, however, the basis of the action is actual fraud involving moral turpitude, the statute of limitation is tolled, and does not begin to run until such fraud is discovered, or could have been discovered by the exercise of ordinary and reasonable diligence.

(a) Concealment per se amounts to actual fraud where for any reason one party has a right to expect full communication of the facts from another.

8. The evidence properly submitted to the jury supports so much of their finding, in amount, as to the sheriff's shortage, as was finally approved by the judge and assented to by counsel for the county.

9. Upon an examination of the special grounds it is held that except those that pertain to the rulings of the court on the subject of the statute of limitations no cause for new trial is shown.

10. The judgment denying a new trial is reversed with direction that on the next trial the issue be limited to the one issue, whether or not the county's action is barred by the statute of limitations.

Sharpe & Sharpe, T. Ross Sharpe, Sharpe & Graham, and G. H. Williams, all of Lyons, for plaintiff in error.

John M. Slaton, of Atlanta, and Memory & Memory, of Blackshear, for parties at interest not parties to record.

R. Lee Moore, of Statesboro, and Dave M. Parker, of Waycross, for defendant in error.

C. B. Conyers, of Brunswick, for party at interest.

On November 3, 1936, E. F. Parker, sole commissioner of roads and revenues of Toombs County, rendered judgment against the sheriff, C. W. Culpepper, as principal, and United States Fidelity & Guaranty Company, as surety, ex parte, which recited that upon consideration of the audit and other records and evidence made it was found and determined that Culpepper was in possession of the sum of $6,624.01 of Toombs County money collected for county purposes; that he refused to pay over the same to the proper authorities; and that it was ordered and adjudged that execution issue against Culpepper and his surety for and in behalf of the county for the amount stated. The execution was addressed to the coroner of Toombs County and all sheriffs of the State except Culpepper, commanding that of the goods and chattels, lands and tenements of Culpepper, the principal, and of United States Fidelity & Guaranty Company, his surety, they make the sum of $6624.01, with interest at the rate of 20 per cent. per annum, and costs, and to bring the money to the office of Parker, the commissioner. The judgment and execution, ex parte, were for an alleged shortage in tax monies claimed to have been collected or unaccounted for by Culpepper, sheriff of Toombs County.

United States Fidelity & Guaranty Company filed an equitable petition in the superior court of the county, asking for a cancellation of the execution and that the same be surrendered by decree of the court, and prayed for other and further relief for the following reasons: (a) Because the execution issued ex parte without citation and notice to it, and that said surety company did not waive citation or notice, nor did the principal. (b) Because if Toombs County ever had any right of action against United States Fidelity & Guaranty Company, surety on Culpepper's bond, that county's right of action accrued more than three years before the issuance of the execution and was barred by the statute of limitations, under the act of 1933, Ga.Laws 1933, p. 78, § 11, Code 1933,§ 89-832, because that act provides that no such execution shall issue against a surety on a bond unless issued within three years from the date of the act, to wit, March 16, 1933, or within three years from the date of the alleged, cause of action accrued. To this petition Toombs County filed its answer, and averred that if the plaintiff is relying upon section 11 of the act of March 16, 1933, as a statute of limitations applicable to this case, because the bond was executed two or three months before the passage of the act, said portion of the act was unconstitutional, being in violation of article 1, section 10, paragraph 1, of the constitution of the United States, U.S. C.A., Code 1933,§ 1-134, which provides in part that 'No State shall * * * pass any Bill of Attainder, expost facto Law, or Law impairing the Obligation of Contracts.' The trial judge held that the act of 1933 was constitutional, but did not apply to bonds written previous to its passage.

The surety company filed an amendment to its petition, in which it alleged that petitioner had a good and legal defense to any action that may have been instituted by the county if citation had issued under the act of 1933 and been served upon petitioner, notifying it that it was the county's intention to issue an order and fi. fa. against Culpepper, the principal. Another amendment filed by the surety company alleged that Parker, the commissioner for Toombs County, knew and had actual notice of the alleged shortage in the accounts of Culpepper on and prior to the passage of the act, and had talked to him about it, and knew that the alleged default was disputed by Culpepper on and prior to the passage of the act, and more than three years before the issuance of the summary execution against petitioner. Bonds were issued by Culpepper and the surety company covering the years 1929 to 1936, inclusive. In April, 1936, Parker, the commissioner, and Lankford, attorney for Toombs County, mailed notice to the surety company enclosing a copy of an audit report showing Culpepper's shortage and demanding settlement by the company. It was in November, 1936, that the judgment and execution were issued. The case came on for trial on November 22, 1937, and after the introduction of evidence the jury returned a verdict finding in favor of Toombs County and against Culpepper and his surety the sum of $6589.01, with interest at the rate of 7% per annum from the date of the judgment.

The surety company made a motion for new trial on the usual general grounds, to which various grounds were added by amendment. The judge overruled the motion for new trial on condition that the defendant's counsel write off a certain sum from the verdict and judgment, which the court held was not sufficiently shown by competent evidence; otherwise the motion would be granted and a new trial ordered. Counsel for Toombs County, the defendant, filed response to the court's order and made the following stipulation: 'Defendant hereby writes off of said verdict the said sum of $1562.14, and amends the same accordingly by entering this remitter as to said amount and as provided by law. Defendant also amends the judgment' accordingly. The United States Fidelity & Guaranty Company excepted.

GRICE, Justice.

1. A long line of authorities supports the statement made in the first headnote Code, §§ 92-3808, 92-3809; Walden v. County of Lee, 60 Ga. 296, 297; Price v. Douglas County, 77 Ga 163, 169, 3 S.E. 240; Pulaski County v. Thompson, 83 Ga. 270, 9 S.E. 1065; Hobbs & Tucker v. Dougherty County, 98 Ga. 574, 25 S.E. 579; Roberts v. Dancer, 144 Ga. 341, 87 S.E. 287; McWhorter v. Chattooga County, 154 Ga. 289, 114 S.E. 203; Palmer v. Burke County, 180 Ga. 478; Lamar County Board v. McCalley, 181 Ga. 329, 182 S.E. 6. The act of March 16, 1933, above referred to, does not purport to alter this rule, for in section 9(g), now Code, § 89-824, it is expressly provided that the proper county authority may issue execution against...