Opinion
8 Div. 776.
October 3, 1933.
Appeal from Morgan County Court; W. T. Lowe, Judge.
Action in assumpsit by W. J. Sparkman against J. R. Culver, J. F. Stewart, and R. W. Puckett. From a judgment for plaintiff, defendants appeal.
Affirmed.
Count 2 of the complaint is as follows:
"Plaintiff claims of the defendants, one hundred twenty-five and 20/100 ($125.20) dollars, with interest thereon from July 1st, 1931, for that, in the years 1930 and 1931, defendant, J. R. Culver, was Judge of the Inferior Court of Hartselle, in Morgan County, Alabama, and as such, during said time was in the actual performance of the duties of said office, under color of said office, and plaintiff was the legal constable of the precinct of Morgan County in which said court was located, and during said time was authorized to and was actually engaged as said constable in serving and executing the legal process issued from said court by defendant Culver, as Judge thereof, as is aforesaid; and plaintiff avers, that defendants, J. F. Stewart and R. W. Puckett, were at and during said time on the official bond of defendant, J. R. Culver, as Judge of said Inferior Court of Hartselle.
"Plaintiff further avers, that during said time a large number of criminal cases were finally disposed of in said court by the said judge, a list of said cases so disposed of being attached as 'Exhibit A' to the first count of this complaint, and by reference thereto made a part of this count of the complaint, and that plaintiff served and executed the legal process issued by defendant Culver as judge of said court in said causes, and by reason of the service and execution thereof by plaintiff he became entitled to the fees allowed by law to constables for said services. Plaintiff further avers, that in each of said causes the defendants therein were discharged, or found guilty, by the said J. R. Culver, as judge of said inferior court; and plaintiff further avers that a large number of criminal cases were tried and convicted by the said Culver as said judge of said court during said time, and that fines in each of said cases were collected, and were appropriated by said judge of said inferior court for the payment of the costs in the cases shown by 'Exhibit A' attached hereto; and plaintiff avers that his pro rata part of the costs collected as is aforesaid, in the cases shown by 'Exhibit A' hereto attached, amounted to said sum of $125.20; and plaintiff further avers that the fines in the cases where convictions were had, were collected by the defendant, J. R. Culver, acting as judge of said court, and under color of his office as said judge, and that under the law said fines so collected were appropriated by the defendant, as said judge to pay the costs in the cases in which no convictions had been had — as shown by 'Exhibit A' hereto attached; plaintiff further avers that after collecting the fines in cases convicted before him and after appropriating said fines so collected to the payment of the costs in the cases in which there had been no convictions — as shown by 'Exhibit A' hereto attached — it became the duty of defendant as judge of said inferior court to pay over to plaintiff his pro rata part of said fines so collected, sufficient to pay the plaintiff his pro rata part of the fees earned by him in the cases in which there had been no conviction, said cases being shown by 'Exhibit A' hereto attached. Plaintiff further avers, that the condition of defendant's official bond as judge of said inferior court, is as follows:
" 'Now, therefore, if the said J. R. Culver shall well and faithfully discharge the duties of such office during the time he continues therein, or discharges any of the duties thereof, then the obligation to be null and void, otherwise to remain in full force and effect;' and plaintiff avers that said bond was breached in this, that notwithstanding it was defendant J. R. Culver's duty to pay over to plaintiff his pro rata part of the fines collected and appropriated as is aforesaid to pay the fees earned by plaintiff in the cases in which the defendants were found not guilty or discharged, as shown by 'Exhibit A' hereto attached, that the said defendant has failed and refused so to do on plaintiff's request, and defendant now has said moneys so collected belonging to plaintiff in his custody or control, which he refuses to pay to plaintiff; wherefore plaintiff brings this suit."
The following are the grounds of demurrer interposed to count 2:
"1. Said complaint fails to state a cause of action. 2. Said complaint alleges a conclusion in these words: 'Plaintiff was the legal constable of the precinct of Morgan County, Alabama, in which said court was located.' 3. Said complaint fails to allege that W. J. Sparkman served or executed any legal process. 4. Said complaint fails to allege what legal process was served by him issued by defendant, J. R. Culver, as judge of said court. 5. Said complaint alleges a conclusion when it alleges 'and by reason of the service and execution thereof by plaintiff he became entitled to the fees allowed by law to constables for said services.' 6. Said complaint fails to allege that the services rendered by him was rendered in precinct 10 of Morgan County. 7. Said complaint fails to allege that the services rendered by the plaintiff was legal or criminal. 8. Said complaint alleges a conclusion in these words: 'Plaintiff further avers that after collecting said fees it became the duty of defendant as judge of said inferior court to pay over to the plaintiff the fees so collected.' 9. Said complaint fails to allege that the defendant, J. R. Culver, breached any conditions of his bond. 10. Said complaint fails to allege that J. R. Culver, as judge breached the conditions of said bond by failing and refusing to pay said fees to the plaintiff. 11. Said complaint fails to show that the defendant, J. R. Culver, failed to faithfully discharge his duties in the office of the inferior court. 12. Said complaint fails to designate in Exhibit A that said cases originated in precinct 10 of Morgan county, Alabama. A. For aught appearing there is no liability shown as to the defendant, J. F. Stewart. B. For aught appearing there is no liability as to R. W. Puckett. C. Because under the statute creating the said Inferior Court of Hartselle the defendant J. R. Culver is authorized to hold said funds until expiration of his term of office as said judge till Jan. 1933. D. Because the complaint shows on its face that this action is prematurely brought."
J. N. Powell, of Hartselle, and Lynne Lynne, of Decatur, for appellants.
The complaint was subject to the ground of demurrer pointing out that the defendant judge was required to retain all moneys collected by the court. Local Acts 1907, p. 819, § 8; State v. Bugg, 196 Ala. 460, 71 So. 699; Compton v. Marengo County Bank, 203 Ala. 129, 82 So. 159. Appellee was not entitled to recover in this case because he failed to prove his case and failed to show that the amount claimed was his pro rata part. Local Acts, supra. The liability of the sureties on Culver's bond is limited to duty enjoined, imposed, or sanctioned by law. A mere private act, not pertaining to any function the law casts on him, although done by one holding a bonded office, imposes no liability on his sureties. McKee v. Griffin, 66 Ala. 211. Sureties are not liable for money which it was not the official duty of Culver as judge of the inferior court to receive. 35 C. J. 479. If Culver was not authorized to receive the money in question, it was not received in his official capacity, and the sureties on his bond are not liable for his failure to pay it to plaintiff. Snyder v. Gross, 69 Neb. 340, 95 N.W. 636, 5 Ann. Cas. 152. Culver could not collect costs in cases in which he did not have final jurisdiction, the defendant discharged. Code 1923, § 3755; Reports of Atty. Gen., 1918-20, p. 523. Any service rendered by the constable outside his precinct was illegal service for which he could collect no fee. Henry v. Waldrop, 206 Ala. 135, 89 So. 371; Waldrop v. Courson, 206 Ala. 189, 89 So. 714.
O. Kyle, of Decatur, for appellee.
There was no conflict in the evidence, and plaintiff was entitled to the affirmative charge. When such is the case, no injury could have been suffered by appellants. Lee v. Raiford, 171 Ala. 124, 54 So. 543; Alwart Bros. Coal Co. v. Royal Colliery Co. (C.C.A.) 211 F. 313; 46 C. J. 987. The bill of exceptions does not purport to set out all the evidence. When such is the case, it will be presumed on appeal that evidence was introduced that would uphold the rulings of the trial court, even to the giving of the affirmative charge. Stafford v. Jones, 224 Ala. 583, 141 So. 246; Stephens v. Walker, 217 Ala. 466, 117 So. 22; Lamar v. King, 168 Ala. 285, 53 So. 279; Beard v. DuBose, 175 Ala. 411, 57 So. 703, 63 So. 318; Hunnicutt L. Co. v. M. O. R. Co., 2 Ala. App. 442, 57 So. 73. This court judicially knows that appellee was and is constable for beat 10, Morgan county, and appellee could maintain suit in assumpsit to recover fees earned. 2 R. C. L. 778; Peterson v. Benson, 38 Utah, 286, 112 P. 801, 32 L.R.A. (N.S.) 949, Ann. Cas. 1913B, 640. Defendant Culver as such judge had authority to collect these fees and costs. Local Acts 1907, p. 819, §§ 7, 8, 10, 13; Code 1923, § 3850 (2); McCaraher v. Com., 5 Watts S. (Pa.) 21, 39 Am. Dec. 107. This court takes judicial notice of this local act. Sanders v. Young, 220 Ala. 94, 124 So. 225. The defendant Culver and his bondsmen are liable on his official bond. Code 1923, § 5682; Morrow v. Wood, 56 Ala. 5; Dudley v. Chilton County, 66 Ala. 593; State v. Nevin, 19 Nev. 162, 7 P. 650, 3 Am. St. Rep. 873; Mason v. Crabtree, 71 Ala. 480; Randolph v. Brown, 115 Ala. 677, 22 So. 524; McPhillips v. McGrath, 117 Ala. 549, 23 So. 721; Coleman v. Ormond, 60 Ala. 328; Borden v. State, 9 Ark. 252; Fogarty v. Finlay, 10 Cal. 239, 70 Am. Dec. 714. The action of assumpsit was the proper action. Farmers' Bank T. Co. v. Shut Keihn, 192 Ala. 60, 68 So. 363; Levinshon v. Edwards, 79 Ala. 293; Somerville v. Wood, 129 Ala. 369, 30 So. 280; Morrow v. Wood, supra; Lanford v. Lee, 119 Ala. 248, 24 So. 578, 72 Am. St. Rep. 914. Authorities cited by appellants do not apply to the facts of this case. McKee v. Griffin, 66 Ala. 211; Mason v. Crabtree, supra.
The plaintiff brought this action against J. R. Culver and the sureties on his official bond to recover certain fees claimed to be due him as constable of beat 10 in Morgan county by J. R. Culver, judge of the inferior court of Hartselle, which the said Culver as such judge collected and failed and refused to pay to plaintiff. It was admitted in open court that defendants Stewart and Puckett were sureties on the official bond of Culver, and that the bond was regular and with obligations as required by law.
Count 2 of the complaint, upon which the cause was tried, states a complete cause of action against each defendant, and is not subject to any ground of demurrer interposed.
Under section 4 of Local Acts 1907, pp. 819, 820, the plaintiff was entitled to legal fees, for the execution and returns of all processes issued out of the inferior court of Hartselle and executed by him.
Under sections 7 and 8 of the local act, supra (page 821), and section 3850, Code 1923, it was the duty of the judge of said court to collect fees due plaintiff as costs and from fines collected to pay plaintiff his pro rata part of costs in cases where the state had failed to convict.
There is no merit in the contention that the judge of the inferior court of Hartselle did not act in his official capacity in the collection of fines and forfeitures coming into his hands as judge of said court. Money coming into the hands of the judge in payment of fines and costs are to be received by, and accounted for by, the judge in his official capacity. No other fair construction can be made of the act creating the inferior court of Hartselle and section 3850, Code 1923.
It is insisted by counsel for appellant that this plaintiff cannot recover, because the judge of the inferior court of Hartselle had collected fines in cases where convictions had been had and applied the money thus collected to the payment of insolvent costs in cases where the court had only preliminary jurisdiction. We are cited the opinion of the Attorney General, under date of April 20, 1920, as being authority on this point. It is, however, unnecessary for this court to pass upon the soundness of that opinion in this case. The bill of exceptions does not purport to set out all of the evidence in the case; in fact, it affirmatively appears that there was other evidence which does not appear. We therefore presume that there was evidence to sustain the verdict of the jury and to sustain the ruling of the court in its refusal of the charges.
There is no merit in the contention that this suit was prematurely brought. Under section 4 of the local act, supra, the plaintiff as constable was under duty to execute and make due return of all processes issued out of said court. For this service he was entitled to his legal fees, to be collected in the same manner as provided by law for like services in justice courts. Under Code 1923, § 3850(2), it was the duty of the judge to collect the fees imposed and apply same to the payment of his costs and the costs of the constable, not to exceed $50 for any calendar month, the remainder to be paid to the county. Until the fees of the judge and constable had been paid to the amount named in the statute, the county had no interest in said fines so collected. Under Code 1923, § 3850, the judge may deduct from fines and forfeitures collected by him the amount due for his fees and those of his constable in cases in which the defendant was acquitted. When this is done, the amount of the constable's fees are immediately due him. The evidence sustains the finding by the jury that these fines were collected in the amount of the verdict rendered, that the amounts were appropriated to the payment of costs due plaintiff in cases in which the inferior court had jurisdiction, and that the amounts had not been paid.
There are many technical questions raised, but, when this entire record is read and understood, it presents a simple case in which Culver, as judge of the inferior court of Hartselle, had collected certain moneys which ex equo et bono belonged to this plaintiff, that the collections were made in his official capacity, and that he has never paid the money due by him to plaintiff as found by the verdict of the jury.
We find no error in the record, and the judgment is affirmed.
Affirmed.