Appeal
from Morgan County Court; W. T. Lowe, Judge.
Action
in assumpsit by W. J. Sparkman against J. R. Culver, J. F
Stewart, and R. W. Puckett. From a judgment for plaintiff
defendants appeal.
Affirmed.
When
judge of inferior court of Hartselle deducted his fees and
constable's fees in cases where defendant was acquitted
from fines paid in other cases, they were immediately due
constable, and action brought before expiration of
judge's term was not premature (Loc.Acts 1907, p. 819;
Code 1923, § 3850).
Count 2 of the complaint is as follows:
"Plaintiff
claims of the defendants, one hundred twenty-five and
20/100 ($125.20) dollars, with interest thereon from July
1st, 1931, for that, in the years 1930 and 1931, defendant
J. R. Culver, was Judge of the Inferior Court of Hartselle,
in Morgan County.
Alabama,
and as such, during said time was in the actual performance
of the duties of said office, under color of said office, and
plaintiff was the legal constable of the precinct of Morgan
County in which said court was located, and during said time
was authorized to and was actually engaged as said constable
in serving and executing the legal process issued from said
court by defendant Culver, as Judge thereof, as is aforesaid;
and plaintiff avers, that defendants, J. F. Stewart and R. W.
Puckett, were at and during said time on the official bond of
defendant, J. R. Culver, as Judge of said Inferior Court of
Hartselle.
"Plaintiff
further avers, that during said time a large number of
criminal cases were finally disposed of in said court by the
said judge, a list of said cases so
disposed of being attached as 'Exhibit A' to the
first count of this complaint, and by reference thereto made
a part of this count of the complaint, and that plaintiff
served and executed the legal process issued by defendant
Culver as judge of said court in said causes, and by reason
of the service and execution thereof by plaintiff he became
entitled to the fees allowed by law to constables for said
services. Plaintiff further avers, that in each of said
causes the defendants therein were discharged, or found
guilty, by the said J. R. Culver, as judge of said inferior
court; and plaintiff further avers that a large number of
criminal cases were tried and convicted by the said Culver as
said judge of said court during said time, and that fines in
each of said cases were collected, and were appropriated by
said judge of said inferior court for the payment of the
costs in the cases shown by 'Exhibit A' attached
hereto; and plaintiff avers that his pro rata part of the
costs collected as is aforesaid, in the cases shown by
'Exhibit A' hereto attached, amounted to said sum of
$125.20; and plaintiff further avers that the fines in the
cases where convictions were had, were collected by the
defendant, J. R. Culver, acting as judge of said court, and
under color of his office as said judge, and that under the
law said fines so collected were appropriated by the
defendant, as said judge to pay the costs in the cases in
which no convictions had been had-as shown by 'Exhibit
A' hereto attached; plaintiff further avers that after
collecting the fines in cases convicted before him and after
appropriating said fines so collected to the payment of the
costs in the cases in which there had been no convictions-as
shown by 'Exhibit A' hereto attached-it became the
duty of defendant as judge of said inferior court to pay over
to plaintiff his pro rata part of said fines so collected,
sufficient to pay the plaintiff his pro rata part of the fees
earned by him in the cases in which there had been no
conviction, said cases being shown by 'Exhibit A'
hereto attached. Plaintiff further avers, that the condition
of defendant's official bond as judge of said inferior
court, is as follows:
"'Now,
therefore, if the said J. R. Culver shall well and
faithfully discharge the duties of such office during the
time he continues therein, or discharges any of the duties
thereof, then the obligation to be null and void, otherwise
to remain in full force and effect;' and plaintiff
avers that said bond was breached in this, that
notwithstanding it was defendant J. R. Culver's duty to
pay over to plaintiff his pro rata part of the fines
collected and appropriated as is aforesaid to pay the fees
earned by plaintiff in the cases in which the defendants
were found not guilty or discharged, as shown by
'Exhibit A' hereto attached, that the said
defendant has failed and refused so to do on
plaintiff's request, and defendant now has said moneys
so collected belonging to plaintiff in his custody or
control, which he refuses to pay to plaintiff; wherefore
plaintiff brings this suit."
The
following are the grounds of demurrer interposed to count 2:
"1.
Said complaint fails to state a cause of action. 2. Said
complaint alleges a conclusion in these words:
'Plaintiff was the legal constable of the precinct of
Morgan County, Alabama, in which said court was
located.' 3. Said complaint fails to allege that W. J.
Sparkman served or executed any legal process. 4. Said
complaint fails to allege what legal process was served by
him issued by defendant, J. R. Culver, as judge of said
court. 5. Said complaint alleges a conclusion when it
alleges 'and by reason of the service and execution
thereof by plaintiff he became entitled to the fees allowed
by law to constables for said services.' 6. Said
complaint fails to allege that the services rendered by him
was rendered in precinct 10 of Morgan County. 7. Said
complaint fails to allege that the services rendered by the
plaintiff was legal or criminal. 8. Said complaint alleges
a conclusion in these words: 'Plaintiff further avers
that after collecting said fees it became the duty of
defendant as judge of said inferior court to pay over to
the plaintiff the fees so collected.' 9. Said complaint
fails to allege that the
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