Ramage, Parks & Co. v. Folmar

• Decision Date: 15 April 1926
• Docket Number: 4 Div. 260
• Court: Alabama Supreme Court
• Parties: RAMAGE, PARKS & CO. v. FOLMAR, County Treasurer, et al.

108 So. 580

214 Ala. 661

RAMAGE, PARKS & CO. v. FOLMAR, County Treasurer, et al.

4 Div. 260

Supreme Court of Alabama

April 15, 1926

Rehearing Denied June 3, 1926

Appeal from Circuit Court, Pike County; W.L. Parks, Judge.

Motion for summary judgment by Ramage, Parks & Co. against W.B Folmar, as County Treasurer of Pike County, and W.B. Folmar &amp Sons, Bankers, as sureties on official bond. From a judgment for defendants, movant appeals. Reversed and remanded.

A.G Seay, of Troy, for appellant.

T.L. Borom, of Troy, for appellees.

SAYRE J.

Motion against W.B. Folmar as county treasurer of Pike county and the sureties on his bond for summary judgment, as provided by section 10265 of the Code of 1923. The office of county treasurer for Pike county was abolished by the act of September 15, 1915 (Laws 1915, p. 348), but the record shows that defendant Folmar was appointed to act as county treasurer under the terms of section 322 of the Code of 1923. The motion was maintainable against defendant Folmar and his bond according to the provisions of section 319 of the Code of 1923, whereby the law, as laid down by a majority of the court in Compton v. Marengo County Bank, 203 Ala. 129, 82 So. 159, was changed.

Movant owned warrants drawn against the general road fund of the county for the sums of $980, $474.62, $2,976.34, $2,610, and $1,689.83, duly registered and numbered respectively as 830, 827, 848, 849, and 863. These warrants were presented for payment February 25, 1925, and again on March 2d, next thereafter, and payment refused by defendant. At that time there remained in the keeping of defendant to the credit of the road fund the sum of $19,447.68, against which there were outstanding prior warrants to the amount of $16,496.97. This, without more, would have required the payment of the first two or three warrants. White v. Mayor, etc., 119 Ala. 483, 23 So. 999. But, further, defendant had paid to holders, other than movant, warrants of later registration than any or all of the warrants presented by movant, aggregating the sum of $18,000 and more, so that, but for defendant's unauthorized preference of junior warrants to that amount (Code 1923, § 303, subsec. 4), he would have been in ample funds to pay all the warrants here in suit. There is an element of contract in movant's claim of priority over junior warrants that cannot be overlooked or evaded, as this court held on good authority in Rhodes v. Marengo County Bank, 205 Ala. 667, 88 So. 850.

Defendant's answer to movant's whole case is that, on January 1st preceding the date of presentation by movant, the court of county commissioners had adopted a budget for the year 1925, showing, among other things, an item of more than $18,000 reserved for the payment of interest on the bonded debt of the county, a copy of which budget had been lodged with defendant, and in this connection defendant showed the court that, if movant's warrants were paid, there would not be funds in his hands sufficient to meet the estimated expenses of the county for the current year. In Rhodes v. Marengo County Bank, 205 Ala. 667, 88 So. 850, we held that, with or without the act of September 25, 1919, section 6789 of the Code of 1923, providing for the budget system of finance, the entire county revenue may be devoted to the payment of current governmental expenses when necessary, and that other claims, though passed and allowed, must be deferred until there is a surplus in the treasury over and above the amount necessary to meet such current expenses. But this contention obviously fails to answer the two propositions heretofore stated, viz.: (1) That, notwithstanding the transfer, in effect, of some $18,000 from the road fund to the general fund, there remained in the road fund enough to pay several of movant's warrants; and (2) that, if there had been no preference of prior warrants, defendant would have been in funds to pay movant for all his warrants, notwithstanding the transfer of funds.

But further, the propriety of thus in effect transferring funds from the road fund to the general fund of the county is justified by defendant on the ground, if we read the record aright, that such transfer was necessary "to pay the actual expenses of the county as shown by the budget so adopted." Code, § 6789. The budget, in and of itself, accomplished nothing in the way of affecting movant's right to be paid in the order of his warrants after provision made for the payment of the governmental expenses of the county for the current year. But subsection 6 of section 231 of the Code of 1923, prescribing the order of payment among preferred claims against the county, and the act of September 29, 1923, amending section 146 of the Code of 1907, now section 224 of the Code of 1923, are more to the point. Subsection 6, added by the act of September 29, 1923 (Acts, p. 634), provided that--

"Interest on bonds heretofore and hereafter lawfully issued by the county, in the order of their issuance, as evidenced by the interest coupons attached to such bonds or by the bonds themselves. For the payment of the above recited claims, in the order named, it shall be the duty of the county treasurer or custodian of the county funds to set apart a sufficient fund from the monies of the county and he and his

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