Scofield v. Perkerson

• Decision Date: 31 July 1872
• Citation: 46 Ga. 350
• Parties: L. SCOFIELD et al., plaintiffs in error. v. A. M. PERKERSON,deputy sheriff, defendant in error. MARTIN J. HINTON et al.. plaintiffs in error. v. A. M. PERKERSON, deputy sheriff, et al., defendants in error.
• Court: Georgia Supreme Court

46 Ga. 350

L. SCOFIELD et al., plaintiffs in error. v. A. M. PERKERSON, deputy sheriff, defendant in error. MARTIN J. HINTON et al.. plaintiffs in error. v. A. M. PERKERSON, deputy sheriff, et al., defendants in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1872.)

*[Judges McCay and Montgomery being disqualified from presiding in the two following cases, the facts last certified to the Governor, who commissioned the Honorable C. D. McCutchen and the Honorable Hugh Buchanan, Judges of the Superior Court, pro hac vice, Judges of the Supreme Court.]

Injunction. Execution against public officer. Judicial interference. Constitutional law. Taxes. Before Judge Hopkins. Fulton County. At Chambers. October 14th, 1872.

These cases were argued together. The allegations contained in the bills as originally filed will be found substantially set forth in the report of the two preceding cases. The decision of the Chancellor, refusing the injunctions upon the bills as originally presented to him, having been affirmed by the Supreme Court, amendments and an affidavit were filed in each case and second applications made for injunction.

The bill filed by Lewis Scofield and Varney A. Gaskill was amended substantially as follows, to-wit:

Complainants aver that the Committee of the Legislature upon the management and government of the Western and Atlantic Railroad, in making their investigation, heard testimony ex parte; that Foster Blodgett and his securities were not present nor invited to be present; that they did not know *when many of the witnesses would be examined, and had no opportunity either in person or by counsel to be present and cross-examine the witnesses sworn before the committee; that they had no opportunity to rebut or to explain the evidence of the witnesses sworn, nor to impeach them, some of whom complainants aver, could have been successfully imreached; that said committee, sitting in their rooms at the capitol, sent for such persons as they wanted and asked them such questions as they pleased; that they did not proceed upon a full and fair investigation, but condemned said Blodgett and his sureties to paythe sum stated in their account, certified to the Comptroller General without a hearing; that when said committee certified to the Comptroller General the account aforesaid and directed said officer to issue execution, there was no investigation nor examination by the Comptroller General into the truth of the matters stated in said committee\'s report; that said report was not verified by the books and records in the office of the Comptroller General, nor by any other books or records whatsoever; that the Comptroller General did not know or pretend to know whether said report was in any respect true; that he had no opinion and formed no judgment thereon; that he did not satisfy himself of the correctness of the committee\'s report by inspection of the books and accounts of the Western and Atlantic Railroad; that he did not mean to, and did not, in fact, adopt it as his own; that he did not cause the true amount due by the said superintendent to be ascertained from said books as required by law; that, on the contrary, said Comptroller General, when asked to issue said execution, hesitated, and at first determined not to issue any execution unless directed to do so by his Excellency the Governor, and called at the office of the Governor for orders, and finding the Governor absent, he was assured by one of the Secretaries in the Executive office that an order would be issued by the Governor on his return; that the Comptroller General consulted the Attorney General of the State before issuing the execution, and asked to be informed if it was *his right or duty to issue it upon the report of said committee alone, and that the Attorney General being very much engaged, and not having time to investigate the question fully, told the Comptroller General to issue the execution, and that if there were any objections to it the defendants in fi. fa. might present their objections thereafter.

Complainants further aver that the Comptroller General, after yielding his doubts and scruples as to the issuing of the said execution, refused to issue the same upon his own knowledge, judgment or investigation, but desiring that it should appear (as the truth was) to be issued upon the report of the committee, he required that the execution should recite the report of said committee as the authority for the same; that it was the distinct purpose of the Comptroller General in making said recitals, in his execution, to disclaim all intention, purpose or pretext of acting upon his own judgment, or after making any investigation whatever.

Complainants further aver that the items making up the account certified by the committee to the Comptroller General do not appear on the books, records or papers of the Western and Atlantic Railroad, nor of the Comptroller General's office, but were made up from ex parte, oral and written testimony, and that in arriving at said items said committee heard evidence, and found facts therefrom and pronounced judgment thereon as a Court, with the exception that complainants and their principal were not present, nor allowed to be present, nor their side of the case heard, all of which acts and doings of said committee were illegal and void so far as the same were used as the foundation of an execution against complainants.

Complainants aver that the principal item in said account, to-wit the item of $15,000 for old iron is entirely erroneous and unjust, because the notes given by the Scofield Rolling Mill Company for said sum were paid to the Western and Atlantic Railroad in new iron and in rerolling old iron; that outside of this transaction there is not, and never was, any foundation for said item of $15,000; that the other items of *said account are not on the books of the late superintendent nor on the books of the Western and Atlantic Railroad, nor of the Comptroller General, nor of the Treasurer of the State; that before any execution could issue therefor complainants are entitled to be heard, to introduce testimony, to cross-examine, and, if necessary, to impeach the witnesses against them; that complainants, in good faith, deny the fairness and truth of all of the items of said account, and desire to have the same fairly and correctly adjudicated in the Courts of the country.

Complainants aver that when their application for injunction was made upon their original bill some of the facts aforesaid were not stated, because unknown to them, and others were not deemed material until the decision of the Court thereon; that they did not know the circumstances under which the Comptroller General acted in issuing the execution, nor that the books and records of the Western and Atlantic Railroad and of the Comptroller General's and Treasurer's offices did not show said account to be true; that they did not know upon whose testimony nor upon what facts said accounts were based.

Complainants aver that if said execution is allowed to proceed they will be without remedy at law, because said Perkerson will not be liable as a trespasser; they cannot be reimbursed out of the bond of the Comptroller General, because they are advised that they have no right to sue on the bond of the Comptroller General (which is only for $20 000,) to recover damages for a trespass like the one with which complainants are threatened, and if entitled to an action on said bond there are other parties whose bill is filed in this Court, whose claim on the bond added to complainants' will be more than double the penal sum of said bond; that the Comptroller General has but little taxable property in his own right, his whole estate being, according to the tax books, less than $10,000, out of which a homestead of $3,000 in specie may be reserved, and that in case of death his estate *would be subject to a claim for dower and year\'s support for his family.

Complainants, submitting the facts aforesaid in addition to those contained in their original bill, renew their prayer for injunction heretofore made, and pray that the same may now be granted.

The defendant showed for cause why the injunction should not be granted, the following reasons, accompanied by the affidavit of the Honorable Milton A. Candler.

1st. Said bill is defective because H. I. Kimball, John Rice and H. O. Hoyt, the other defendants to the fi. fa., are not parties to said bill.

2d. Because said Comptroller General is not a party to said bill.

3d. Because by reason of the refusal of the former injunction this matter is res...