State v. Follis

• Decision Date: 06 August 1918
• Citation: 205 S.W. 444,140 Tenn. 513
• Parties: STATE EX REL. STEWART, STATE REVENUE AGENT, v. FOLLIS ET AL. STATE EX REL. STEWART, STATE REVENUE AGENT, v. COLLINS ET AL.
• Court: Tennessee Supreme Court

205 S.W. 444

140 Tenn. 513

STATE EX REL. STEWART, STATE REVENUE AGENT, v. FOLLIS ET AL.

STATE EX REL. STEWART, STATE REVENUE AGENT, v. COLLINS ET AL.

Supreme Court of Tennessee.

August 6, 1918

Appeal from Chancery Court, Giles County; Walter S. Bearden Chancellor.

Suits by the State, on the relation of Hoyte Stewart, State Revenue Agent, against D. J. Follis and others and against D. M Collins and others. The suits were tried together. From decrees rendered, all parties appeal. Decrees reversed in part, and affirmed in part.

Stewart Wilkes and Eslick & Eslick, all of Pulaski, and John T Allen, of Nashville, for appellant.

Woodward & Wade, of Pulaski, for appellees.

NEIL C.J.

The transcript embraces the record of two separate suits, but inasmuch as the questions presented in the two cases are the same, in the main, they were tried together in the chancery court, and have been so tried here. We shall first dispose of the Follis case.

The bill in the Follis case was filed by Hoyte Stewart, state revenue agent, against Follis, former trustee of Giles county, and a part of the sureties on his several official bonds, to recover amounts alleged to be due the state and the county. Relief was denied the state, but the bill, as to this matter, was dismissed without prejudice. Other facts will be stated in immediate relation to the points below discussed.

A decree was rendered in favor of the county for $1,859.57 and costs of suit, against Follis and his sureties. From this decree the defendants appealed, and have assigned errors. There was also a decree against Collins and his sureties for a larger amount and for the costs of that cause. Collins and his sureties have likewise appealed.

The state appealed from the judgment dismissing the bills as to its claims for a recovery in its personal right.

The first point we shall consider is presented by one of the assignments of error in the following language:

"The bill should have been dismissed, because the revenue agent has no powers other than those conferred by statute. His only power, as to bringing suits against a delinquent officer, is against the officer while in office. He has no power to bring to account officers after the expiration of their terms."

Follis' term of office expired in 1912. The present suit was brought on April 1, 1916. The point made involves the construction of Acts of 1907, c. 602, §§ 71, 77. The latter section creates the office of state revenue agent, and, in the main, defines his duties, but section 71 also imposes duties on this officer, and the two must be construed together. Both sections make it his duty to bring suit for revenue due from delinquent trustees, the latter in clearer terms conferring the power in respect of county revenue. There is language in section 77 which seems designed to cover only the case of a trustee while still in office; but there is other language in the same section which is broad enough to embrace any trustee who was charged with the duty of collecting state and county revenue, and failed in his duty while so charged. "They [the revenue agents] shall have the right to bring suit by motion or otherwise against any delinquent revenue collector, or other officer, in the name of the state upon order of the comptroller, or upon their own motion, for any state, school, or county revenue. * * * They shall also have the authority to investigate any claims of the state or county for revenue due, and shall bring suit for the same as above." Under section 71, subsection 1, "a motion or suit lies in favor of the state, county, corporation, or municipality, against the trustee and his sureties on his official bonds for any moneys in his hands, officially, not paid over, or accounted for according to law, or for failure to collect." The next subsection mentions the state revenue agent as the person to bring suits in favor of the state, and in its name. In view of the broad provisions quoted and referred to, we are of the opinion that it was the purpose of the General Assembly to confer on the state revenue agents the power of investigating the state of any trustee's official accounts, whether in office or out, for the purpose of ascertaining whether he had duly collected and paid over all state and county revenue that he should have so collected and accounted for. To give the words "charged with the collection and disbursement of state and county revenue" the meaning assigned thereto by the defendants would be to confine them to so narrow a scope that the purpose of the act would be largely frustrated. We think the term "charged" means charged at the time the default or failure of duty occurred. The point made must therefore be overruled.

The sureties who are before the court assign for error the fact that certain of their cosureties, although mentioned in the bills, were not made defendants along with them, or made parties to the cause in any way, and that no reason was set forth for this omission. This defense appears in the answers and is true in fact. Is it sound in law?

The point would be well made if this were a motion, since relief in that form is confined within very narrow bounds, as being opposed to the course of the common law. Voorhies v. Dickson, 1 Sneed (33 Tenn.) 348; Prowell v. Fowlkes, 5 Baxt. (64 Tenn.) 649. Under this rule a motion against a sheriff and part of his sureties only was held bad in Rice v. Kirkman, 3 Humph. (22 Tenn.) 415; also a motion against a coroner and part of his sureties in Gibson v. Martin, 7 Humph. (26 Tenn.) 127; also a motion on a trustee's bond after the death of the principal in Derrick v. State, 3 Lea (71 Tenn.) 396, 398. But the restriction does not apply when suit is brought in the regular way, since under Shannon's Code, § 4486, all joint obligations are made joint and several. Under this section of the Code, taken from Acts of 1789, c. 57, § 5, a suit against a sheriff and a part only of his sureties was permitted to stand. Garrison v. Hollins, 2 Lea (70 Tenn.) 684, 685. There is nothing, therefore, in the defense mentioned so far as concerns a proceeding of the kind before us.

It is objected that certain evidence which the chancellor admitted was incompetent. The substance of this matter is that Giles county employed O. R. Ewing & Co., a very competent firm of accountants, the senior member of which belonged at the time to our state board of accountants, to investigate and report upon the condition of Follis' accounts as trustee, and also those of Collins. The examination was had and a report made. To complete the examination of Follis' accounts, covering two years, required three weeks; those of Collins, which covered two years and part of another year, required quite two months. It appears that in preparing the report as to Follis the accountants had to explore numerous books, large and small, appertaining to the office, and in addition thereto 12,000 separate papers. The special facts on this head do not appear so distinctly in the evidence as to Collins, but the same number of books had to be inspected, and we have no doubt as many thousands of separate papers as those which appeared in the Follis matter. Having made these examinations the accountants wrote out their report, covering the two years of Follis and the two years of Collins and the fraction of another year, appropriately dividing and designating the items as to the two. This report is quite a book in itself, is very long, very minute, and very exact, embracing thousands of figures. It is obvious that it would have been wholly impracticable to conduct such an investigation in open court, or even in the master's office. If it could not be conducted substantially as it was, it could not be managed at all. It is objected that the original books and papers were themselves the best evidence, and that under the general rule on that subject they should have been introduced. But there is an exception which has been thus formulated:

"When the facts sought to be proved are of such a character, and the papers are so voluminous or numerous, that the examination thereof during the trial would consume much time, and it would be difficult for the jury" (and we may add for the court) "to understand and reach the necessary result, the rule requiring the production of the papers themselves is so relaxed that the court may, in its discretion, permit a competent witness, who has examined the papers with reference to the points sought to be established, to testify to the result of such examination." 2 Encyc. Ev. p. 284, citing cases from California, Connecticut, Iowa, Louisiana, Maryland, Minnesota, Missouri, Nebraska, and Texas.

This exception to the rule is also recognized in Burton v. Driggs, 20 Wall. (87 U. S.) 125, 136, 22 L.Ed. 299, 302, and in Culver v. Marks, 122 Ind. 554, 23 N.E. 1086, 7 L. R. A. 489, 495, 17 Am. St. Rep. 377. See, also, Jones on Ev. § 206; 1 Greenlf. Ev. § 93. There are numerous other authorities cited on complainant's brief, but those above mentioned are quite sufficient.

We may add that of course, such evidence when admitted is not necessarily conclusive. It is simply competent, and may be tested by the original evidence, the books, papers, etc., on which the experts may be cross-examined. In the case before us the experts were cross-examined at considerable length by counsel for the defendants, but with no effort to test the accuracy of their report by the original books or papers. Indeed the defendants professed themselves overwhelmed by the vastness of the undertaking, and protested that they were unable to properly question the work done without the aid of an expert accountant of their own, which they said they were too poor to engage. But this could not change the...