Gaston v. Shunk Plow Co.
| Decision Date | 14 November 1925 |
| Docket Number | 4986. |
| Citation | 130 S.E. 580,161 Ga. 287 |
| Parties | GASTON, COM'R OF ROADS, ETC., v. SHUNK PLOW CO. ET AL. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Traverse of a sworn answer to a proceeding for contempt is not required before the court can proceed to determine, in the usual way, whether the facts show that the party charged is guilty of disobedience of an order of the court; and the court did not err in overruling the motion of the contemnor to dismiss the proceeding, at the conclusion of the evidence offered by the plaintiffs, on the ground that the answer had not been traversed.
The trial judge did not err in rejecting an amendment to his answer offered by the defendant in such proceeding, which failed to set up any defense to the contempt proceeding.
Every court has power to compel obedience to its judgments, orders and processes; and, in a proceeding for contempt growing out of the alleged violation by the defendant therein of a mandamus absolute, the judge can determine all questions of fact without intervention of a jury, except in the cases provided for in section 4643 of the Civil Code.
None of the provisions of the judgment rendered by the court in this case are void because they are not warranted by the pleadings in the case.
The judge did not err in receiving and considering, after the conclusion of the hearing, an affidavit offered by one of the parties in pursuance of an agreement by both that either one could submit further evidence after the conclusion of the hearing and before the judge rendered his decision especially where nothing otherwise improper appears to have been done in the matter.
The agreement of the county to pay interest on these warrants is a valid and enforceable one; and the court did not err in finding that interest was payable on them, and in directing its payment.
(a) Where, in his answer to a mandamus proceeding, brought against a county commissioner, to compel him to levy a tax to pay certain county warrants, that officer admitted that the county had no defense to such warrants, and where these warrants on their face expressly bear interest from date upon mandamus absolute commanding such officer to levy a sufficient tax each year for four years to pay one-fourth annually of the admitted legal and binding past-due indebtedness of the county, represented in part by these warrants, such officer was required to levy an anual tax sufficient to pay one-fourth of the amounts due on such warrants, including both principal and interest.
(b) Failure of such officer to make such levy rendered him liable to be proceeded against for contempt in violating such mandamus absolute.
Persons who are prevented from paying over money by process of the court, such as writs of injunction and the like, are not liable for interest. Where the holder of county warrants was enjoined from collecting them, in suits brought against the original payee, the holder of such warrants, the county issuing them, and the county commissioner, at the instance of a party who claimed an equitable interest in such warrants and who succeeded in recovering such interest, the effect of such injunction was to enjoin the county from paying these warrants to the holder thereof; and, being thus restrained from their payment, the county was not liable for interest on the warrants during the period when it was so enjoined.
Error from Superior Court, Butts County; G. Ogden Persons, Judge.
Mandamus by the Shunk Plow Company and others against J. O. Gaston Commissioner of Roads and Revenues of Butts County. On petition of the Commercial Credit Company against defendant for contempt, judgment was rendered against defendant, and he brings error. Reversed.
Failure of county commissioner to make tax levy rendered him liable for contempt.
In this list of creditors appears the name of the Commercial Credit Company, transferee, it being duly set out as the holder of the three warrants originally issued to the culvert company. Gaston further stated in his amended answer:
That it was his purpose and intention to levy taxes sufficient to pay off one-fourth of the aggregate indebtedness of the county; "that many of the warrants listed herein have written in the face thereof that interest is to be paid at the rate of 7 per cent. per annum, and that therefore he is not able to give in round numbers the exact amount that will have to be raised each year, but that, when he goes to make up his tax levy, this will all be taken into consideration and sufficient amount raised to pay off the one-fourth."
On the exhibit attached to this amended answer is the following statement:
"Some of the above warrants have written in the face thereof that interest is to be paid thereon at 7 per cent. per annum from the date of same."
Gaston prayed that the court pass an order directing and commanding him and others holding the position of commissioner, or having authority to levy taxes, to levy each year for four years a sufficient tax to pay off one-fourth of the indebtedness set out in the exhibit to his amended answer.
The judgment on the mandamus petition, rendered on September 13, 1915, commanded Gaston as commissioner and his successors in office to levy an extra tax yearly for the years 1915, 1916, 1917, and 1918, sufficient in amount to pay off one-fourth of the "admitted legal and binding past-due indebtedness of the county of Butts each year for the four years aforesaid, as set forth in the petition and answer of the defendant, J. O. Gaston, wherein is set out the warrants and amounts admitted to be due and for the payment of which this order is granted." It was further ordered that each yearly levy be made "ample and sufficient to pay off one-fourth of the said warrants and indebtedness scheduled in defendant's answer and plaintiff's petition." In compliance with this judgment, Gaston as commissioner levied a special tax for the year 1915, and on three warrants the sum of $1,660 were paid on or about August 25, 1916.
On December 18, 1916, the Continental Trust Company filed an equitable petition in Butts superior court against the Commercial Credit Company, the Salisbury Metal Culvert Company, Butts county, and J. O. Gaston, commissioner, in which it secured a temporary injunction restraining the Commercial Credit Company from receiving any money from Butts county or any of its officers on account of these warrants. In this action the Continental Trust Company sought to subject the funds to be raised for the payment of these warrants to the payment of a duplicate set of warrants issued by Butts county at a later date than the original warrants for the payment of the same indebtedness. The lower court held that these duplicate warrants were void; and this judgment was affirmed by this court on December 12, 1918. Continental Trust Co. v. Butts County, 148 Ga. 623, 97 S.E. 679. On April 17, 1919, the Continental Trust Company filed a suit in equity in the United States District Court for the Southern District of Georgia, against the Shunk Plow Company, Commercial Credit Company, Salisbury Metal Culvert Company, Butts county, and J. O. Gaston, commissioner and individually, in which it sought to attach, under the provisions of section 57 of the United States Judicial Code (U. S. Comp. St. § 1039), the funds raised for the payment of the three original warrants by the levy of the special taxes provided for in the mandamus judgment. On the same date a restraining order was secured by the plaintiff, enjoining the defendants from removing the original warrants from the jurisdiction of the district court, and from removing from its jurisdiction any money collected or to be collected from Butts county on these warrants, or from altering the status of the warrants or the funds collected on their account. The case was tried and resulted in a decree on February 12, 1923. From this decree the Commercial Credit Company and the Salisbury Metal Culvert Company took an appeal to the Circuit Court of Appeals, and the Continental Trust Company filed a cross-appeal. The decision of the court on these appeals was rendered on December 26, 1923. None of the defendants except the Commercial Credit Company and the Salisbury Metal Culvert Company were made parties to the direct appeal or the cross-appeal, and they were not represented at the hearing by brief or counsel.
The judgment in the district court, of February 12, 1923, awarded to...
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