Ex parte Hudgins

• Decision Date: 11 June 1914
• Docket Number: 826
• Parties: Ex parte HUDGINS et al.
• Court: Alabama Supreme Court

65 So. 959

188 Ala. 141

Ex parte HUDGINS et al.

No. 826

Supreme Court of Alabama

June 11, 1914

Rehearing Denied July 2, 1914

Certiorari to Court of Appeals.

Action by Pickens County against L.C. Hudgins and others. An order denying a motion to vacate a judgment for plaintiff was affirmed by the Court of Appeals (64 So. 472), and defendants petition for certiorari. Writ denied.

Mayfield J., dissenting.

Oliver Verner & Rice, of Tuscaloosa, Curry & Robinson, of Carrollton, and J.M. Foster, of Montgomery, for petitioner.

Patton & Patton, of Carrollton, for respondents.

GARDNER J.

From the order of the trial court overruling motion of defendants in case of Pickens County v. L.C. Hudgins et al. (App.) 64 So. 472, to have set aside and vacated the judgment rendered against said defendants, petitioners herein prosecuted an appeal to the Court of Appeals, and the judgment of the court below was there affirmed. This ruling of the Court of Appeals we are asked to review.

The complaint contained four counts stating in various manner the cause of action. The insistence of petitioners is that the complaint states no cause of action, and therefore the judgment is void and should be vacated. Confessedly, of course, if any one count of the complaint states a cause of action, then the rulings of the court are correct.

The suit is by Pickens county and against the judge of probate of said county and his official bondsmen, and counts upon a failure of the said probate judge to collect the tax properly due upon the filing for record of a certain mortgage. For convenience we here copy a portion of the fourth count of the complaint, omitting what we deem immaterial for this purpose:

"And plaintiff avers that the defendant L.C. Hudgins did fail to discharge the duties of judge of probate for said Pickens county, Ala., in this, that on, to wit, the 6th day of December, 1906, there was filed with the defendant L.C Hudgins, as judge of probate, for said Pickens county, Ala a mortgage, deed of trust, or instrument in the nature of a mortgage or deed of trust, given to secure the payment of $1,500,000 by Alabama, Tennessee & Northern Railway Company to Knickerbocker Trust Company, trustee, conveying real estate and personal property situated in the state of Alabama, that said mortgage, deed of trust, or instrument in the nature of a mortgage was received for record by defendant L.C. Hudgins, and recorded in record of mortgages book 46, on pages 1 to 32 inclusive; that said defendant, L.C. Hudgins, as judge of probate for said county, failed and refused to collect the tax provided for in section 2082, subd. 7, of the Code of Alabama for 1907, or in section 3911 of the Code of 1896, and has wholly failed to account to plaintiff for its part of the mortgage tax due under said mortgage; wherefore this suit."

By subdivision 7 of section 2082 of Code, 1907, it is provided that no mortgage, deed of trust, etc., shall be received for record without the payment of the privilege tax of 15 cents for each $100 of indebtedness or portion thereof secured thereby. The official duty is therefore clearly placed upon the judge of probate to receive and record the said mortgage, deed of trust, etc., when the tax is paid and equally clear is his duty not to receive the same for record until said tax is paid. He receives compensation of 5 per cent. of the amount collected for such services. By subdivision 7(E) it is provided that of the taxes thus collected by the probate judge there shall be paid to the county treasurer of the county in which such taxes are collected one-third of the amount collected by him, to be accounted for by him, and the remaining two-thirds to the state treasurer.

The county is therefore to receive one-third of this tax, and, as we have seen, it is the duty of the judge of probate to collect the same and not to receive for record the said instrument until and unless said tax is paid.

It is insisted by counsel that this tax is levied by the state and the omission of the probate judge to collect the same was a violation of the duty that he owed to the state, and for this reason that the action could not be maintained by the county.

We do not agree. True, the tax is levied by the state. Indeed, all taxation either comes directly from the state or through some subdivision of the government receiving authority from the state. In either event the state is the fountain source of taxation. In the instant case the tax is levied for the benefit of the county one-third thereof, for the benefit of the state two-thirds thereof, just as much so as if it had been so written in so many words. We are of the opinion that the case of State v. Adler, 123 Ala. 87, 26 So. 502, cited in opinion of the Court of Appeals, fully supports the conclusion there reached.

By section 2473, Code, it is provided that for any breach of an official bond of any officer of this state the person aggrieved may sue in his own name, assigning the appropriate breach.

Section 5415, Code 1907, provides that all bonds given by judges of probate may be sued on by any one sustaining an injury by reason of any neglect or omission of such officer to take sufficient surety from executor, etc., or by failure of such judge to perform any other official duty.

We do not think the authorities cited by counsel as to splitting up a cause of action are applicable here. It is the duty of the judge of probate to collect this tax, one-third for the benefit of the county and two-thirds for the benefit of the state. A failure and refusal on his part to do so (as alleged in said count 4) creates a distinct breach of duty to the county and to the state, giving rise to distinct and separate injury, and each therefore being a separate cause of action. Otherwise, and if insistence of counsel be followed, then should the probate judge receive and collect and pay over to the state only the two-thirds of the tax which is for the benefit of the state, and fail and refuse to collect the one-third for the county, then the latter would be without remedy for such breach of official duty, though suffering the loss of the one-third of said tax.

The foregoing expresses the views of the majority of the court. Justice MAYFIELD dissents and expresses his views in his opinion which follows. He does not seem, however, to rest his dissent upon the line of argument followed by counsel for petitioner, but rather upon the theory that the county has no rights whatever until the tax is actually collected, that the probate judge is acting exclusively for the state and not for the county, and that in this matter he...