Reeve Bros. v. Allen

• Decision Date: 06 July 1942
• Docket Number: 29401.
• Citation: 21 S.E.2d 244,67 Ga.App. 514
• Parties: REEVE BROS. v. ALLEN, Clerk of City Court of Americus.
• Court: Georgia Court of Appeals

21 S.E.2d 244

67 Ga.App. 514

REEVE BROS. v. ALLEN, Clerk of City Court of Americus.

No. 29401.

Court of Appeals of Georgia, Division No. 2.

July 6, 1942

Dykes Bowers & Dykes, of Americus, for plaintiffs in error.

R L. Maynard, of Americus, for defendant in error.

STEPHENS Presiding Judge.

Reeve Brothers filed a petition in the city court of Americus in which they prayed for a rule against H. E Allen, clerk of that court, to show cause why he should not refund to the plaintiffs the sum of $58, which the plaintiffs had paid under protest to the clerk as being the amount representing the cost of recording upon the writ book of that court the pleadings in four suits against the plaintiffs which suits, at the instance of the plaintiffs as alleged non-residents, had been, by order of the city court of Americus, transferred to the Federal court, and the proceedings in the city court of Americus by such order of removal had been stayed. It appeared from the petition that when the plaintiffs paid such court costs to the clerk, and when the order of the court removing the cases to the Federal court was passed, the pleadings in the cases had not been placed of record on the writ book of the court. There appears to have been no answer or demurrer filed by the clerk to this petition. The judge of the city court, in hearing the case on the petition alone, held that the clerk was legally entitled to the costs and rendered a judgment denying the petition and refusing to grant the rule as prayed. The plaintiffs excepted.

It is provided in Code, § 24-2715, that the clerks of the superior courts and city courts must record immediately in a book of final record every part of the pleadings in every case. It is provided in paragraph 7 of that section that the clerk shall not be punished for contempt until after the paper or papers required to be recorded have been filed for three months. It appears that the suits which had been filed in the city court of Americus against the plaintiffs were filed on August 25, 1941, and that the order of removal of the cases to the Federal court was passed on September 11, 1941. It being necessary to pay the court costs as a condition precedent to the removal of the case to the Federal court, it necessarily follows that the court costs were paid within a period of three months after the filing of the suits in the city court of Americus. The clerk, therefore, at the time of the payment of the costs to him by Reeve Brothers, was not in a situation where he was punishable for contempt for any failure to have recorded the pleadings in the writ book. It does not appear that the clerk was in any way derelict in the performance of whatever duties may have rested on him to record the pleadings as required by the Code section cited.

It is contended by the plaintiffs that after the order of removal of the cases to the Federal court, which was before any record had been made by the clerk of the pleadings in the writ book, no jurisdiction over the cases in the city court of Americus attached, and that the clerk, for this reason, had no right or power to record the pleadings in the writ book, and therefore could not legally collect from Reeve Brothers the costs for such record. The Code section referred to which provides for the record of the pleadings in the writ book, expressly provides: "The provisions of this section shall not apply to cases dismissed and settled before said record is...