Banks County v. Stark

• Decision Date: 20 May 1953
• Docket Number: Nos. 1,2,No. 34535,34535,s. 1
• Citation: 77 S.E.2d 33,88 Ga.App. 368
• Parties: BANKS COUNTY v. STARK et al
• Court: Georgia Court of Appeals

Page 33

77 S.E.2d 33

88 Ga.App. 368

BANKS COUNTY v. STARK et al.

No. 34535.

Court of Appeals of Georgia, Division Nos. 1, 2.

May 20, 1953.

Rehearing Denied June 12, 1953.

Syllabus by the Court.

1. Under the provisions of Chapter 27-29 of the Code as amended by the act of 1949, Ga.L.1949, p. 1168, officers bringing funds into court in criminal cases are entitled to a first lien thereon for insolvent costs when such officers are on a fee basis; and it is primarily the duty of the solicitor to distribute this money under court order based upon approved itemized bills of costs submitted to the court by the officers entitled to such fees. Funds not so approved are not to be retained by such officers beyond the end of the calendar year, but are to be paid into the county treasury, and this may be done without jeopardizing any lien to which any officer is otherwise entitled. Accordingly, a petition alleging that named county officers have withheld funds beyond the end of the calendar year without orders of court approving the same sets out a cause of action for a money rule against them under the provisions of this chapter.

2. (a) A county is a political subdivision which must act through its proper officers. The county, acting through its commissioners of roads and revenues, is the proper party to bring this action, under the provisions of the act of 1949, supra, but such commissioners are not by virtue of their office entitled to receive or distribute county funds. Accordingly, an amendment adding the county treasurer as usee of the county for the purpose of receiving and distributing such funds is proper, the act providing that the proceedings shall be governed by all established rules and maxims of equity procedure; and such amendment does not add a new party instead of the original plaintiff.

(b) The action as here brought is a statutory money rule and is not a mandamus proceeding.

3. Under the broad powers granted the trial court to make necessary parties to a money rule, by the act of 1949, Code, Ann.Supp Ch. 27-29, the petition is not demurrable in that it fails to allege the amount of the individual liability of each.

4. A party cannot take advantage of his own wrong or neglect; and where the plaintiff county seeks to recover a sum based upon an audit, which is a sum certain except as to information which it is the duty of the defendants to ascertain and record, and which has not been so ascertained and recorded as to become available to the plaintiffs, the sum sued for is not so indefinite and uncertain as to render the action subject to general demurrer.

Banks County, acting by its named Commissioners of Roads and Revenues, filed its petition in the Superior Court of Banks County against the Solicitor-General of the Piedmont Judicial Circuit, the Clerk of the Superior Court and a former Sheriff of Banks County, alleging that the respondents have, between December 31, 1944, and December 31, 1951, come into possession and retained sums totaling $30,404.47 (of which $4,250.97 came from sales of condemned automobiles, and the remainder from fines and forfeitures) belonging to the petitioner, and seeking a rule nisi requiring the respondent officers to show cause why such money should not be paid over to Banks County. The respondents filed separate demurrers, pursuant to which the plaintiff filed certain amendments. The Judge of the Superior Court of Banks County disqualified, and with the approval of counsel representing all parties the case was referred to the Judge of the Superior Court of the Western Circuit. On the date of the hearing, the respondents filed a joint demurrer based on several general grounds and numerous special grounds. This latter demurrer was a renewal also of all the grounds of the three separate demurrers filed on behalf of each of the respondents. On the hearing the trial court sustained the general demurrer without stating the particular ground or grounds thereof that were being sustained. He did, however, file a memorandum opinion setting forth his reasons for sustaining the general demurrer. He also provided in his order that the special demurrers were not determined.

To the judgment sustaining the general demurrer and dismissing the petition the plaintiff assigns error. The case was first carried to the Supreme Court on the theory that it was an equity case, and was transferred by the Supreme Court to this Court. See Rucker v. Stark, 209 Ga. 496, 74 S.E.2d 74. (case No. 18040).

Brannon & Brannon, Gainesville, J. B. G. Logan, Homer, Abit Nix, Athens, for plaintiff in error.

Wheeler, Robinson & Thurmond, Gainesville, Joseph D. Quillian, J. N. Rainey, Winder, E. C. Stark, Commerce, Allison & Pittard, Lawrenceville, Kimzey & Kimzey, Hamilton Kimzey and Herbert B. Kimzey, Cornelia, for defendants in error.

PER CURIAM.

1. One of the contentions of all the respondents in their original demurrers and in the renewed joint demurrer is that the petition sets out no cause of action. The following are applicable statutory provisions: 'The officers of the several courts, including the prosecuting officers, shall pay into the county treasury of the county where said court is held all moneys arising from fines and forfeitures by them collected, and, on failure to do so, shall be subject to rule and attachment, as in case of defaulting sheriffs. No such officer shall be required to pay into the treasury, as aforesaid, any such moneys, until all the legal claims on such funds held and owned by said officer bringing the money into court, and the costs due the justices and constables in the particular case by which the funds for distribution were brought into court, shall have been allowed and paid.' Code § 27-2902. '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.' Code § 27-2903. 'The officers of court shall have a lien upon all funds arising from fines and forfeitures, for the payment of their insolvent costs.' § 27-2910. By the act of 1949, Ga.L.1949, p. 1168 et seq., new provisions were added to Chapter 27-29 of the Code, reading in part as follows: 'Section 2-B. Any funds now in the possession of or hereafter coming into the possession of the solicitor of any court, or any officer of court, or any other person, as a part of the fine and forfeiture fund, shall be paid over by such solicitor, or other officer or person, into the treasury of the county as now provided by law and in no event shall such payment to such county treasurer be withheld for more than the end of the calendar year 1949, after the approval of this law as to funds now held by such solicitor, officer of court, or other person: Nor shall such payment to such county treasurer be withheld for more than the end of the calendar year during which such fine or forfeiture funds come into the possession of such officer in the future. * * * Section 3. Any surplus of funds which remain in the hands of the county treasurer, the prosecuting officer, or any other custodian of the fine and forfeiture fund, or in the hands of any officer of court or other person as agent or representative of any officer of court after all legal claims against said fund by officers of court have been paid or are barred by limitation as aforesaid, shall be paid over into the county treasury (if not already in the county treasury) and covered into the general fund of the county to be used by the county for the purpose of paying the expenses of courts, the maintenance and support of prisoners, to pay sheriffs and coroners for litigation, and to pay all legal demands of clerks of court, justices of the peace, prosecuting officers, sheriffs, and other officers of court. Section 4: At any time, any claimant claiming any interest in the fine and forfeiture fund (including the officer or officers in charge of the roads and revenues of the county, on behalf of the county, and in the interest of the county in securing all moneys due hereunder to the general fund of the county for the purpose of paying expenses of the courts, the maintenance and support of prisoners, and the payment to sheriffs and coroners for litigation, and payment of all legal demands of officers of court as aforesaid) may proceed as now provided by law by rule and attachment against the county treasurer and the prosecuting officer. Section 5. In said proceeding, or rule, the court may seize any such funds which are a part of the fine and forfeiture fund, by whomsoever held, under appropriate order, and may order same paid into the registry of the court, and to that end, and for the purpose of carrying into effect this entire Act, may make any and all necessary parties. Section 6. * * * the proceeding itself shall be in the nature of an equitable proceeding and be governed by all established rules and maxims of equity; the court may pass such orders and order such disposition of funds in the registry of the court, or in the county treasury, or in the hands of any custodian of said fine and forfeiture fund, as will insure such payment to officers of court, or to the county in lieu of the salary of officers of court * * *.' Code (Ann.Supp.) §§ 27-2918, 27-2921, 27-2922, 27-2923, 27-2924.

It is further observed that the Supreme Court (case No. 18040) 209 Ga. 496, 74 S.E.2d 74, in transferring this case to this court, after quoting the section last above cited, observed that 'the petition in the instant case contains no allegations showing any right in the plaintiffs to any equitable relief, and prays for none, but merely seeks a judgment against the respondents requiring them to pay over to the county treasurer certain sums * * *. It is a statutory rule against the named officers in which neither the pleadings nor...