Gay v. Lewis, 20554

• Decision Date: 11 September 1959
• Docket Number: No. 20554,20554
• Citation: 109 S.E.2d 646,215 Ga. 317
• Parties: Carlus GAY, Sheriff, v. S. A. LEWIS et al., Commissioners, et al.
• Court: Georgia Supreme Court

Page 646

109 S.E.2d 646

215 Ga. 317

Carlus GAY, Sheriff, v. S. A. LEWIS et al., Commissioners, et al.

No. 20554.

Supreme Court of Georgia.

Sept. 11, 1959.

Syllabus by the Court.

Since the instant case presents no question within the jurisdiction of the Supreme Court, the case must be transferred to the Court of Appeals.

S. A. Lewis, R. A. Register, and J. W. Robertson, in their capacities as Commissioners of Roads and Revenues of Laurens County, Georgia, brought their petition for a rule agaisnt the Clerk, the Solicitor, and the Sheriff of the City Court of Dublin, to require a distribution of the funds derived from fines and forfeitures in the City Court of Dublin. Both the Judge of the City Court of Dublin and the Judge of the Superior Court of Laurens County disqualified, and the Judge of the City Court of Swainsboro presided in the case. After a hearing, a judgment was entered distributing the funds in question. Carlus Gay, as Sheriff of the City Court of Dublin has assigned as error various rulings and judgments which were adverse to him.

Nelson & Nelson, Dublin, Price, Spivey & Carlton, Swainsboro, for plaintiffs in error.

H. Dale Thompson, Dublin, Williams & Smith, Swainsboro, for defendants in error.

WYATT, Presiding Justice.

1. The first question with which we are confronted in this case is whether or not it is within the jurisdiction of this court as provided in the Constitution of Georgia, art. VI, Sec. II, Par. IV (Code, § 2-3704). This case was brought to this court upon two theories. First, it is stated in the bill of exceptions that this is an equity case. There is no merit in this contention. No affirmative equitable relief is sought in either the petition or answer, but only a money judgment, and no case for an equitable accounting is made out. Rucker v. Stark, 209 Ga. 496, 74 S.E.2d 74, is a case similar in all material respects to the instant case. There it was held that the case was not an equitable one, and this court transferred it to the Court of Appeals. That case is absolutely controlling in the instant case.

2. As the second reason for bringing the writ of error to this court, it is stated that the demurrers of the plaintiff in error presented a constitutional question within the jurisdiction of this Court. While it is true that the demurrers do attack as unconstitutional for various reasons three acts of the General Assembly, to wit, Ga.L.1912, pp. 194-198; Ga.L.1941, p. 645, and Ga.L.1951, pp. 3151-3152, no attack is made upon Ga.L.1900, pp. 117-130 establishing the City Court of Dublin. The 1900 act, supra, which is not attacked, provided that the funds arising from fines and forfeitures in the City Court of Dublin should be prorated to the payment of the fees due the sheriff, the clerk and the solicitor of said court. The act of 1912, supra, provided that the fees which were allowed the clerk and the solicitor should be paid into the general fund of the county. The 1941 act, supra, and the 1951 act, supra, provided that, in the event the fines and forfeitures were not sufficient to pay all costs due the sheriff, the clerk, and the solicitor, then the payments should be prorated to each as the total amounts collected bear to the amounts due each officer, the amount being due the solicitor to be paid into the general fund.

In the instant case, the sheriff seeks to recover the entire amount due him without any amount being prorated to the clerk and the solicitor. It therefore appears that a decision on the constitutionality of either or all of the acts attacked in this case can in no way affect the amount of money due the sheriff or the outcome of this case in any way....