McDonald v. State

• Decision Date: 19 April 1905
• Citation: 39 So. 257,143 Ala. 101
• Parties: MCDONALD v. STATE.
• Court: Alabama Supreme Court

39 So. 257

143 Ala. 101

MCDONALD v. STATE.

Supreme Court of Alabama

April 19, 1905

Appeal from City Court of Montgomery; A. D. Sayre, Judge.

"To be officially reported."

Summary proceedings by the state against Gordon McDonald for judgment for money collected by defendant. From a judgment for the state, defendant appeals. Affirmed.

The proceedings were commenced by the state, through the solicitor of Montgomery county and the Attorney General serving on defendant notice that they would, during the pending term of the city court of Montgomery, make a motion for a summary judgment against him for the sum of $7,750; and in this notice it was recited that the ground upon which they would move for such summary judgment was that the said McDonald, as the attorney of the state, in a suit by the state against Mrs. Louisa Kidd, in which the state recovered a judgment, received in satisfaction or payment of said judgment the sum of $7,750 as attorney for the state, and upon the demand made upon him by the state, had refused to pay over said amount. After the giving of this notice, a motion was made in favor of the state in the city court of Montgomery, asking for a summary judgment against the said McDonald; the grounds of said motion being the same as contained in the notice served upon the said McDonald and hereinabove set forth. Upon the filing of this motion in the city court of Montgomery, the said McDonald, by his attorneys, appeared and made a motion to dismiss the proceedings upon the grounds that the city court of Montgomery was without jurisdiction, and that only a circuit court of the state had jurisdiction to try said cause. This motion was overruled. Thereupon the defendant demurred to the motion filed against him upon the grounds that it appeared from the said motion and the written notice served upon him that the plaintiff demanded of the defendant the entire amount of the money collected on the judgment obtained by him as attorney for the state, when as a matter of law defendant was entitled to retain out of the proceeds of said judgment his fee for professional services. This demurrer was overruled. Thereupon the defendant filed the plea of the general issue and several special pleas. By the first special plea the defendant set up an indebtedness of the state to him in the sum of $4,500 for professional services rendered in obtaining said judgment, and pleaded said indebtedness as a set-off against plaintiff's demand to the extent thereof. By the other special plea the defendant set up that he was regularly employed as an attorney for the state of Alabama in the suit brought against Mrs. Louisa Kidd, individually and as executrix of the estate of one Tulane, deceased; that in accordance with said employment he had prosecuted the suit to a successful termination, had recovered for the state a judgment upon which he had collected the sum of $7,750, and that under his employment he was entitled to retain from said amount the sum of $4,250, his fee for services rendered; that he had retained this amount and had paid the balance to the state. To the plea of set-off the plaintiff demurred upon the ground that the plea of set-off could not be maintained against the demand of the plaintiff. To the other special pleas of the defendant the plaintiff demurred upon the grounds that it was not shown by the averments of said pleas that there was a valid contract existing between the defendant and the state for the payment to the defendant of the fee claimed, and that in this proceeding the defendant had no right to retain the fee before paying over the whole amount collected by him. These demurrers were sustained. Upon the trial of the case it was shown that the defendant had been employed by the state of Alabama to collect taxes claimed to be due from the estate of one Tulane, deceased, to the state; that the collection of said taxes was brought about at the instance of the back tax commissioner; that the defendant prosecuted the suit or suits in behalf of the state, and recovered a judgment in behalf of the state, upon which judgment the sum of $7,750 had been paid to the defendant for the state. The state offered to introduce in evidence a written demand made by the back tax commissioner upon the defendant for the payment of the whole amount so collected upon said judgment. The defendant objected to the introduction of this written demand upon the grounds that the back tax commissioner had no authority to make the same, and that the defendant was under no obligation to pay said amount to the back tax commissioner. The court overruled this objection, and the defendant duly excepted. The state also proved that the Attorney General of the state had made a written demand upon the defendant for the payment by him of the whole amount collected by him upon said judgment, and that the defendant had failed to pay said amount to the state. It was shown that the money involved was collected by the defendant in the latter part of the year 1902 or the early part of the year 1903, and that demands were made upon the defendant for the payment of the whole amount paid over to him in April and May of the year 1903.

Tyson and Dowdell, JJ., dissenting in part.

Graham & Steiner, Hiel & Hiel, and Marks & Sayre, for appellant.

McCLELLAN C.J.

Motion in city court of Montgomery by the state of Alabama against McDonald for summary judgment, under sections 3763-3767, 3810, 3811, of the Code of 1896, for failing to pay over money collected by the respondent as an attorney at law for the state. Assuming the residence of McDonald in the county of Montgomery, the city court of Montgomery had jurisdiction to entertain and render judgment upon said motion. It is true, of course, that the proceeding is, in limine at least, purely statutory, and must be instituted in accordance with statutory provisions and it is also true that section 3767 of the Code provides that "the motion must be made in the circuit court of the county in which the person moved against resides," etc., and section 3810 is to the same effect; but these are not the only statutes obtaining in the premises. Section 944 of the Code of 1896 provides: "Unless otherwise provided by law, the city courts and the judges thereof have and exercise all the jurisdiction and powers of the circuit court and the judges thereof," etc. Section 4 of the act establishing the city court of Montgomery is as follows "That said court shall have concurrent jurisdiction with the circuit courts in the administration of criminal law in said county, and that the powers and jurisdiction of the circuit courts of this state be, and are hereby conferred on the city court of Montgomery (except in actions to try titles to land), and in order to confer upon said court the same power and authority for the complete exercise of its jurisdiction, as is or may be conferred upon the circuit courts, in the exercise of like jurisdiction, it is declared that all laws conferring jurisdiction in all cases (except in actions to try titles to land) upon the circuit courts giving them the power to hear and determine cases, appoint and remove their officers, punish contempts, regulate their practice, and forms of process, prescribing the duties of their officers and of sheriff and coroner, allowing established fees to each officer, and providing for the collection thereof, or requiring of such officers official oaths and bonds, shall be held to extend to said court and its officers, as fully as they extend to the circuit courts. The judge of said court herein provided for, shall be a conservator of the peace in Montgomery county, and as such, and in the exercise of the jurisdiction hereby conferred, shall, in the recess or vacation of said court, have the same power and authority as judges of the circuit courts." And by section 9 of said act it is enacted "That all laws of a general nature (except as to actions to try titles to land) that may hereafter be adopted giving jurisdiction to the circuit courts of this state, or to the circuit court of Montgomery county, shall be held to apply and extend to the city court of Montgomery within said county, although said city court may not be mentioned in said law." Acts 1863, pp. 122, 123. We will not say that section 944 of the Code, quoted above, confers upon city courts generally the special jurisdiction conferred by section 3767 upon circuit courts. That is open to debate; but it cannot be doubted that the provisions of the act of 1863, quoted above, do confer upon the city court of Montgomery the special jurisdiction of circuit courts of the summary proceedings authorized by chapter 106 of the Code of 1896.

The facts set forth in the notice served on McDonald and in the motion made in the city court gave that court jurisdiction of the subject-matter involved for the statutory purpose of a summary judgment. The appearance of the respondent, and the issues he presented on those alleged facts, obviated the necessity which would otherwise have existed for proof of the venue--that the respondent was a resident of Montgomery county, or, having no permanent residence, was found in said county--and rendered it unnecessary for the record of the city court to affirmatively show the jurisdictional facts further than such facts were shown by the incorporation of the motion into the record of the court. Smith v. Bank, 5...