Truett v. The Justices Of The Inferior Court

• Decision Date: 30 June 1856
• Docket Number: N0. 22.
• Citation: 20 Ga. 102
• Parties: Bright W. Truett et al., his securities, plaintiffs in error. vs. The Justices of The Inferior Court, for the use of Randolph County, defendants.
• Court: Georgia Supreme Court

20 Ga. 102

Bright W. Truett et al., his securities, plaintiffs in error. vs. The Justices of The Inferior Court, for the use of Randolph County, defendants.

N0. 22.

Supreme Court of the State of Georgia

JUNE TERM, 1856.

Fi. fa. and illegality, in Randolph Superior Court. Decided by Judge Kiddoo, at Chambers, May 24th, 1856.

A fi. fa. in favor of the Justices of the Inferior Court for the use of Randolph County, was issued against Bright W. Truett, Tax Collector of said county, and his securities, to collect certain taxes which had come into the hands of said collector, and which were still in his hands. To this fi. fa. an affidavit of illegality was filed by defendants, and the cause was submitted to the Judge, upon the following agreement:

"It is agreed by and between Counsel for plaintiffs and defendants, that the same (case stated) shall be submitted to the decision of his Honor, David Kiddoo, Judge of the Superior Court, for his decision upon the illegality on the above stated fi. fa. in the first instance, without awaiting a resort to the other tribunals and forms, subject to a revision of his decision by the Supreme Court, to be taken by either party on bill of exceptions, as in other cases, on the following state-ment of facts: It is agreed that Truett, as Tax Collector, collected one hundred per cent, on the State tax. It is farther agreed, that 12¹/₂ per cent, of the amount was assessed for poor school purposes, without a recommendation by the Grand Jury or School Commissioner. It is further agreed, that subsequent to the. collection of taxes for 1853, the Inferior Court passed the following order, to wit:

'Whereas, an order was entered on the minutes of this Court at the July Term, 1853, ordering and directing the Tax Collector of Randolph County to collect twelve and one-half per cent, for poor school fund, when the Grand Jury nor School Commissioner had neither made a recommendation for the assessment of said tax. It is therefore ordered by the Court, that said sum of twelve and one-half per cent, collected as aforesaid, be paid over to the County Treasurer by the Tax Collector, for county purposes, it originally being the intention of the Court that it should be collected for that purpose. February 6th, 1854.'

Which order provided for its application in another manner, and which order was passed by the Inferior Court in proper form. Shall Truett and his securities be responsible for the twelve and one-half per cent, collected by him? Have the Inferior Court any authority to force its collection from defendants? Is illegality a remedy?"

Upon a submission of the facts above agreed on, a motion was made by Counsel for defendants in error, to dismiss the illegality referred to. The Court sustained the motion and passed an order dismissing the illegality, ordering the H. fa. to proceed; and that the said order, together with the agreement of Counsel, be entered on the minutes of the Court. Plaintiff's Counsel excepted to this decision, and assigns the same as error.

Douglass & Douglass, for plaintiffs in error.

Hood...