Gay v. Laurens County

• Decision Date: 08 February 1962
• Docket Number: 21495,Nos. 21494,s. 21494
• Citation: 217 Ga. 594,124 S.E.2d 81
• Parties: Carlus D. GAY v. LAURENS COUNTY, Georgia, etc. LAURENS COUNTY, Georgia, etc., v. Carlus D. GAY.
• Court: Georgia Supreme Court

Page 81

124 S.E.2d 81

217 Ga. 594

Carlus D. GAY v. LAURENS COUNTY, Georgia, etc.

LAURENS COUNTY, Georgia, etc., v. Carlus D. GAY.

Nos. 21494, 21495.

Supreme Court of Georgia.

Feb. 8, 1962.

Syllabus by the Court

1. For the reasons set forth in divisions 1 and 2 of the opinion the trial court erred in sustaining the general demurrers to Counts I, II, III and IV of the defendant's cross action.

2. For the reasons set forth in division 3 of the opinion the trial court did not err in sustaining the general demurrer to the plaintiff's petition.

Laurens County, acting through its Board of County Commissioners, filed a petition in Laurens Superior Court against Carlus D. Gay, former Sheriff of Laurens County, alleging that Gay owed the County $31,842 for money 'that he * * * collected in direct violation of the law and which he would be due to pay to Laurens County under a settlement as set forth under the law of said case.' The petition further alleged that, in a former action between the same parties, in the City Court of Dublin, the court had ordered the Clerk of the City Court, a nominal defendant in this suit, to pay Gay $6711.08. The petition alleged that Gay was insolvent, that the County had no adequate remedy at law for the collection of the money and ended with prayers that the City Court Clerk be restrained from disposing of the money and that the money be paid to the County to apply on the amount allegedly due the County by Gay.

A temporary restraining order was issued and a hearing of the case was set for a future date.

Gay filed general and special demurrers to the petition, a plea in bar, and an answer and cross action, which cross action is the source of the main bill of exceptions in the instant case. In his cross action Gay alleged four separate claims against the County in four separate counts.

Count I of the cross action alleged that the County owed Gay $113,945.63 as fees and costs due him from January 1, 1953 through August 31, 1957, that amount being the balance remaining after deducting from all fees and costs collected by the County the sum of $35,000 paid to Gay as salary under a Salary Act declared to be unconstitutional by this court in the case of Gay v. Laurens County, 213 Ga. 518, 100 S.E.2d 271. Gay also alleged that certain other deductions had been credited to the County in arriving at the sum for which he was suing. This count set forth that a demand for payment of the sum had been filed with the County, setting forth an itemized statement of the fees and costs due Gay based upon an audit made for the County by the County Auditor.

Count II alleged that Gay earned costs amounting to $20,000 or other large sum in felony cases in Laurens Superior Court from January 1, 1953 through December 31, 1960, which sum was not included in the County Auditor's audit but was due Gay as shown by the records of the Superior Court. The count alleged that the sums due Gay are for cases made and disposed of during the period referred to and for 'many such cases made prior to January 1, 1961, which have or will be disposed of subsequently thereto, in which this defendant is or will be entitled to all sheriff's costs and fees earned by him prior to January 1, 1961.' The count ends with a prayer for $20,000 'or other large sum as ascertained to be due him [Gay]' and for an audit.

Count III alleged that the County owes Gay $5,000 'or other large sums' for costs in civil cases, including divorce actions, paid into the Superior Court from the April Term of 1957 through December 31, 1960, and not included in the audit made by the County Auditor.

This count further alleged that some sheriff's costs in civil cases in the City Court of Dublin have accrued and accumulated since the September Term 1957. The prayer is for payments of the above sums.

In Count IV Gay alleged that the County owes him $197,175.50, said figure being composed of $62,050 in costs and fees earned in criminal cases in the City Court of Dublin from January 1, 1953 through March 31, 1958; $110,125.50 earned fees and costs in criminal cases in the City Court from the March Quarterly Term 1958 through the December Quarterly Term 1960; and $25,000 for turnkey fees and service of bench warrants in criminal cases in the City Court from March 1958 through December 31, 1960. The count further alleged that Gay has received $93,758, leaving a balance due of $103,317.17.

To Gay's answer and cross action the County filed their general demurrers.

On August 31, 1961 the trial court entered a single order sustaining Gay's general demurrers to the original petition and dismissing the petition and also sustained Laurens County's general demurrers to Gay's cross action and answer.

Gay's exceptions to the ruling on the demurrers filed against his cross action come to this court on the main bill and the County's exceptions to the ruling on the demurrers filed against their petition come before the court on the cross bill.

Carl K. Nelson, Nelson & Nelson, Dublin, for plaintiff in error.

H. Dale Thompson, Dublin, for defendant in error.

MOBLEY, Justice.

1. Count I of Gay's cross action seeks to recover $113,945.63 with interest from September 12, 1957, which sum, Gay alleges, represents the difference between fees collected by Laurens County during the time the invalid salary act was in force and the salary paid to him as sheriff during that time. Gay also credits the County with $4,265 paid him by the County.

This case is not unlike the case of Owens v. Floyd County, 94 Ga.App. 532, 95 S.E.2d...