Johnson v. Hudson

• Decision Date: 21 May 1896
• Citation: 36 S.W. 380,96 Tenn. 630
• Parties: JOHNSON v. HUDSON, Clerk.
• Court: Tennessee Supreme Court

36 S.W. 380

96 Tenn. 630

JOHNSON v. HUDSON, Clerk.

Supreme Court of Tennessee.

May 21, 1896

Appeal from chancery court, Benton county; A. G. Hawkins Chancellor.

Agreed case by Thomas B. Johnson, for use of Benton county, against Dorsey G. Hudson, clerk and master in chancery. From a decree in favor of complainant, defendant appeals. Reversed.

Johnson & Vertrees and Eli T. Morris, for appellant.

Sidney J. Peeler, for appellee.

ALLEN Special Judge.

This is an agreed case, by which the parties, in accordance with sections 4187, 4188, Mill. & V. Code, submitted the facts upon which the controversy depends to the chancery court of Benton county, in which county the defendant resides. The defendant is clerk and master of the chancery court of said county, and has been such for three years. The complainant is the attorney appointed by James A. Harris, comptroller of the state, under chapter 137 of the Acts of 1895; the object being to clothe said attorney with the powers heretofore vested in the judge or chairman of the county courts of the state, under sections 578-581, Mill. & V. Code. It is agreed That the defendant, as such clerk and master, had received and collected, and now has in his hands, certain sums of money due and going to certain parties, known and unknown, as follows: First, fees due certain parties as witnesses in the chancery court, amounting to $20; second, fees due certain parties and officers for services rendered, amounting to $12 fourth, amounts due certain parties for legacies unknown fifth, amounts due persons as creditors in insolvent estates, and where land has been sold for the payment of debts, amounting to $26; sixth, amounts due certain parties from the sale of real estate for partition, amounting to $9; seventh, and perhaps other sums from other sources, and for other causes not known or remembered, such as printer's fees, surveyor's fees; and such fees as arise from the due course of litigation in the chancery court. That said sums have been in the hands of defendant, as such clerk and master, for more than two years. That said Johnson, as such attorney aforesaid, has called upon defendant, at his office, to turn over all these sums of money to him as provided in chapter 137 of the Acts of 1895, which defendant declined to do. And defendant assigned 15 reasons for declining to pay said funds over to said Johnson as such attorney, all of which are stated in the record; but it is deemed important or material to mention but one of the reasons assigned by defendant, which is as follows: "The said act of 1895 directs the comptroller to appoint an attorney to collect the money of the citizen, when he has not requested it, and take 15 per cent. of his money as pay for the services of the attorney, when the citizen has neither asked, requested, nor desired the same. This act takes from the citizen 15 per cent. of his property, without his consent or his day in court." And it is insisted, for this reason, that said act violates section 8 of the bill of rights, ^[1] and is therefore void. On the other hand, it is insisted by complainant that the statute means that the attorney collecting said funds shall pay them over to the county, and that the county is the party entitled to said funds, on the ground that said funds go to the county, in the nature of escheats, and that the citizen is not deprived of any part of his property by virtue of said act.

Section 577, Mill. & V. Code (being section 520 of Code of 1858), empowers the judge or chairman of the county court to act as the financial agent of the county, and says what his duties are as such financial agent, in subsections 1 to 10, inclusive. Section 578, Mill. & V. Code (being section 521, Code 1858), requires the judge or chairman of the county court, in making settlements with the clerks, to ascertain what amounts of money are in their hands, due to witnesses, officers, and others, which may have been collected by them from suitors, or from the state and county treasury, and which have been in the hands of the clerks for more than two years, and provides that such sums of money shall be paid into the county treasury, as other county revenue. Section 579, Mill. & V. Code (being section 522, Code 1858), requires the clerks, upon oath, to report to the judge or chairman the items so collected by them and remaining in their hands, as mentioned in the last section; and the judge or chairman is required to examine the books minutely, and interrogate the clerks with reference to the facts, and to report thereon to the county court. Section 580, Mill. & V. Code (being section 523, Code 1858), requires the judge or chairman to accompany his report with a list of the persons to whom money remaining in the hands of the clerk is due, and that the county court shall spread the same in full in a record book kept for that purpose. Section 581, Mill. & V. Code (being section 524, Code 1858), says: "The person to whom any money paid into the county treasury is due, may apply to the judge or chairman of the county court for a warrant for the amount due him, and on presenting this warrant to the county trustee he shall pay the amount, as in other cases, out of any money in the treasury."

In the case of Deaderick v. County Court of Washington Co., 1 Cold. 202,- that being a motion against Deaderick, as clerk and master, to compel him to pay over money to the county treasury which had lain in his office, unclaimed, for more than two years,-Judge McKinney, delivering the opinion of the court, said: "We are of opinion that the act of 1845, the substance of which has been incorporated into the Code (sections 521-524), is free from any constitutional objection. Moneys in greater or less amounts are constantly paid into the clerk's office, which are never called for by the persons to whom they belong, and consequently fall to the clerk. The law in question transfers these moneys to the several county treasuries. This law is based upon the familiar principle of the doctrine of escheat, by which the lands of persons dying without heirs, or for which no owner can be found, go to the state; or witnesses, to the common-school fund. The same principle, we suppose, may be applied to personalty. What objection can there be to such a provision? The rights of the persons to whom the moneys were due, should they ever appear to demand them, are carefully protected by the statutes. No injury is done to them by the transfer of the fund from the clerk's office to the county treasury. The payment of the money, if ever called for, is at least as amply secured to them. Nor is any injury done to the clerk, of which he can be heard to complain. He has no right or claim to the money, and the authority of the statute is full indemnity to him against all future liabilities, as regards the persons to whom the moneys may belong, in event they should ever appear or demand payment." In cases of escheat, as regulated by our statute (sections 2961-2968, Mill. & V. Code), the title of the escheated property vests absolutely in the state, for the use of the common-school fund; and there is no provision...