Arthur v. The Comm'rs Of Gordon County

• Decision Date: 30 September 1881
• Parties: Arthur . vs. The Commissioners of Gordon County.
• Court: Georgia Supreme Court

67 Ga. 220

Arthur . vs. The Commissioners of Gordon County.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1881.

County Matters. Executions. Constitutional Law. Auditors. Practice in Superior Court. Practice in Supreme Court. Records. Before Judge Underwood. Gordon Superior Court. February Term, 1881.

Reported in the decision.

Dabney & Fouche; W. J. Cantrell & Son; Jos. N. McConnell, for plaintiff in error.

W. K. Moore: E. J. Kiker, for defendants.

jackson, Chief Justice.

This record consists of a huge mass of disconnected and ill-assorted papers, with pages omitted as appears from the paging. This mass, unwieldy in itself, is sub-divided into ten or more parts, each parcel to itself as a separate transcript, and heterogeneous parcels of matter, wholly distinct from each other, so far as the record discloses, are grouped in the same parcel. It is all in writing, none of it printed, and the writing, a good deal of it, hard to decipher. Reference to exceptions and amendments is sometimes made by numbers, and sometimes by numbers with letters prefixed or annexed to them; and there is no discoverable means from the bill of exceptions or any of the ten parts of the transcript, of ascertaining to what these lettered figures refer. Nor does the abstract of the counsel for plaintiff in error, or the brief, throw such light upon this confusion as to bring order out of its chaos. It is very difficult, therefore, to review the case intelligently, or to reach a conclusion upon it entirely satisfactory. But as it is the duty of the plaintiff in error to make error appear, it remains for this court to rule such questions of law as are made so that we can pass upon them; and where none such are made so as to show error in the rulings below, to take it for granted that none exist.

The county commissioners of Gordon county issued executions against Arthur and his sureties as a defaulter in handling the county funds as treasurer during two terms of office. To these executions affidavits of illegality were filed by him; an account was taken by an auditor, who found large sums due by the treasurer for both terms of office; to his report exceptions were filed by Arthur, and on these exceptions a verdict was rendered sustaining the report in the main; a new trial was denied by Judge Underwood, Judge McCutchen having presided on the trialbefore the jury; and on the judgment of Judge Underwood refusing the new trial, and on his order and decision directing the executions to proceed for certain sums of principal, with interest at seven per centum, error is assigned here.

1. A motion was made to quash the executions on the trial, and this is one ground of the motion for new trial. It is based on the ground that the county commissioners had no power to order these fi. fas to be issued. They take the place of the ordinary, and he stands in the shoes of the old inferior court, and we think it clear that the power to issue the executions devolved upon these officers by law. Code, §§563, 911; Cobb's Digest, p. 212. We see nothing in the constitutional point about trial by jury before the executions issue. He has had that trial after they were issued, just as fully as it could have been had before, and the right is in no substantial sense impaired. Ever since 1825 it has devolved upon the justices of the inferior court, and then on the ordinary, and more recently on the county commissioners, to issue these executions summarily, and then the remedy, as in this case, may be had by trial by jury before the courts. Code, §5127; 5 Ga., 185. Under this power provided in the constitution of 1868, codified as last cited, this board was created for Gordon county, and this power transmitted to them. The executions are not issued by the clerk but by the commissioners, and signed by the clerk on their order. So far as we can see, they comply substantially with law. 9 Ga., 185; 11 Ib., 207; Cons. 1868, Art. 11., sec. 7; Code, §§337. 5o6; Acts 1874, p. 344.

2. There was no error in striking the exceptions complained of as too general. 47 Ga., 434. In matters of account, running through a series of years, the exceptions to the auditor's report thereon should not deal in general terms, but in specifications of issuable points. In all pleadings, issues should be specific, in exceptions to the report of an auditor, especially so; otherwise the work ofthe accountant appointed by the court will amount to no practical effect, but the entire case had as well be tried de novo by the jury. It is only the exceptions as to matters of fact which are tried by the jury, and they must be specific and distinctly issuable. But the case cited supra from the 47th Ga., rules the point, and it is useless to argue it. This covers the ruling of the court in striking the 2d, 5th, 9th, 10th, 11th, 12th, 14th, 15th, and 16th exceptions, so far as we are able to apply the rule of law to a record so confused as this is, for there is nowhere in it a complete statement of the exceptions originally made by defendant, but those allowed to stand seem embodied together, and those stricken are in another place, and they differ in the transcript as a recital and in the order of the judge striking them. For instance, the judge according to his judgment, struck the fifth, which does not appear elsewhere as stricken, and which cannot be found in the record at all. It is, however, doubtless as general as those stricken, and we class it as coming under this rule of law.

3. The discretion of the court in rejecting the two new grounds, numbered 17 and 18, offered on the trial with no satisfactory reason given for delay, will not be controlled by this court, ample time having been given for filing all, and the cause having been in court for years.

4. The auditor's report is prima facie ...