Gay v. McTimer
| Decision Date | 06 September 1966 |
| Docket Number | No. 1,No. 42039,42039,1 |
| Citation | 151 S.E.2d 776,114 Ga.App. 461 |
| Parties | Carlus D. GAY v. G. M. McTIMER, Commissioner et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
The evidence demanded the verdict directed, and no material error of law appearing, the trial court did not err in rendering judgment against the defendant for the amount shown by the evidence to be due the plaintiffs out of the portion of the fund held by the defendant.
Nelson & Nelson, Carl K. Nelson, Jr., Dublin, for appellant.
McDonald, Longley, McDonald & McDonald, Ernest McDonald, Dalton, Clifford Seay, Griffin, P. T. McCutchen, Ellijay, William Malcolm Towson, Paul J. Jones, Jr., Dublin, for appellees.
This was an action brought by named individuals as members of the Board of Commissioners of the Peace Officers' Annuity and Benefit Fund of Georgia to recover out of the funds in the hands of the defendant Gay, as sheriff, and in the hands of the defendant members of the Board of Commissioners of Laurens County, amounts due to be remitted to plaintiffs pursuant to the provisions of the Act approved February 1, 1950 (Ga.L.1950, p. 50 et seq.; Code Ann. Ch. 78-9), as amended. The case was originally carried on appeal to the Supreme Court and was transferred to this court because all equitable features had been eliminated from the case, and, therefore, the case is not within the jurisdiction of that court. See Gay v. McTimer, 221 Ga. 841, 148 S.E.2d 172. That ruling constitutes an adjudication that this case is not an equity case. Brightwell v. Oglethorpe Telephone Co., 176 Ga. 65, 166 S.E. 646; Jasper School Dist. v. Gormley, 184 Ga. 756, 193 S.E. 248. We shall, therefore, treat it as merely a suit at law to recover as for money had and received. Banks County v. Stark, 88 Ga.App. 368, 372, 77 S.E.2d 33. So construed, the petition was not subject to general demurrer.
Section 10 of the Act creating the Peace Officers' Annuity and Benefit Fund, as amended and as codified as Code Ann. § 78-909, provides for a graduated schedule of payments to the Peace Officers' Annuity and Benefit Fund, the amount of such payments to be based on the amount of each individual fine or forfeiture, and to be made by the person or persons whose duty it is to collect fines and forfeitures. It provides that such person or persons shall keep accurate records of the amounts due the board and shall remit the same periodically to the secretary and treasurer of the board.
It appears from the record in this case that the defendant county commissioners or their predecessors in office brought a money rule in the City Court of Dublin against the clerk thereof and the defendant Gay, as sheriff of that court, to compel a distribution of fines and forfeitures collected during the September term, 1957, December term, 1957, and March term, 1958, of the City Court of Dublin and held by the said clerk and sheriff. The plaintiffs herein were not parties to that proceeding, but, according to the facts stipulated in this case they were, under the provisions of the aforesaid Act as amended, entitled to receive the sum of $1,610 out of the total fund consisting of fines and forfeitures held by the clerk and sheriff prior to the disbursement of such fines and forfeitures and before 'the payment of any costs or any claim whatsoever' out of such fines and forfeitures. Ga.L.1959, pp. 330, 332; Code Ann. § 78-909. The record shows further that in the previous proceeding, above referred to, a complete audit and accounting of the funds was had, and the judge of the city court issued an order providing for a distribution of the funds constituting the fines and forfeitures in the hands of the sheriff and in the hands of the clerk to the county and to the sheriff in the amounts due them as shown by the said audit and accounting.
The order of the judge of the city court, a copy of which is a part of the record before this court on appeal, shows that the sum of the funds in the hands of the clerk of the court and in the hands of the sheriff for distribution totaled $43,023.17. That order recites 'that said funds shall be distributed to the clerk, sheriff, and solicitor, and on a pro rata basis in accord of the total amount of cost due to each officer to the amount of money on hand and further that none of said officers have any priority to payment but that each must be paid pro rata out of the fines and forfeitures available in accord with the act of 1900, creating the City Court of Dublin.' (Italics supplied.) Pursuant to this determination the judge of the city court adjudged that the sheriff was entitled to receive out of said sum of $43,023.17, the sum of $20,176.58, and that the county, standing in the place of the clerk and the solicitor, would receive the balance, or $22,846.59. The record before this court shows that thereafter said funds were distributed in accordance with the aforesaid order.
As stated above, the Act creating the Peace Officers' Annuity and Benefit Fund, as amended, creates in favor of said fund a charge against each individual fine or bond forfeiture in the amount therein provided which shall be paid to the secretary and treasurer of said fund 'before the payment of any costs or any claim whatsoever against such fine or forfeiture.' Construing the language of the order of the judge of the city court, as quoted above, in connection with the provisions of the Act approved February 21, 1951 (Ga.L.1951, p. 3151), and the Act approved February 12, 1952 (Ga.L.1952, p. 2344), it is apparent that the fines and forfeitures distributed pursuant thereto were insufficient to satisfy the claims of the sheriff for insolvent costs and the claims of the clerk and solicitor of the court, in whose shoes the county stood, for insolvent costs, and that it was the purpose and intent of the judge in making the distribution, and he did in fact order the distribution of the funds pro rata to the...
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