Opinion
7 Div. 521.
October 29, 1925.
Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.
W. J. Boykin, of Gadsden, for appellants.
Plaintiff failed to keep a fee book, and the judgment rendered against the surety was erroneous. Code 1923, §§ 7266, 7267; McDonald v. Cox, 104 Ala. 379, 16 So. 113; Bilbro v. Drakeford, 78 Ala. 318; Marks Gayle v. Wood, 133 Ala. 533, 31 So. 978. Plaintiff had the burden of showing when the amounts charged were collected and that the clerk still owed them. Buckner v. Graves, 210 Ala. 294, 98 So. 22. This not being a state matter, the reports of the examiner were not prima facie evidence. They were erroneously admitted. Code 1923, § 7747; Orr v. Bookholdt, 10 Ala. App. 331, 65 So. 430; Tatum v. Comm. Bank, 193 Ala. 120, 69 So. 508, L.R.A. 1916C, 767; U.S. H. A. Co. v. Savage, 185 Ala. 232, 64 So. 340.
Hood Murphree, of Gadsden, for appellee.
Counsel discuss the questions raised and considered, but without citing authorities.
Plaintiff introduced in evidence the official report of a state examiner, regularly made in due course, showing the items of sheriff's fees collected by the defendant clerk, as evidenced by the execution docket kept by the clerk in his office. The report is, in fact, a statement of account between the sheriff and the clerk with respect to the fees in question. Section 746, Code 1923, provides that —
"Such reports shall be public records and shall be prima facie evidence of what they charge."
The effect of this report was to make a prima facie case for plaintiff, and the burden of refuting its findings, or to show payment to plaintiff, was thereby cast upon defendant. The fact that the report does not show the date of each fee collection is not material. It is sufficient if it shows that all items were collected during the period of Hurst's incumbency covered by the official bond sued on, and that is plainly shown.
One of defendants' contentions is that plaintiff kept no fee book in which was entered the items of fees sued for, and that under sections 7266 and 7267 of the Code he is not entitled to claim them in this suit. But plaintiff testified that he kept a book in his office on which was entered every fee earned by the sheriff, and that when his term of office expired he left this book in the sheriff's office at the courthouse. He further stated that he had searched for this book, and had been unable to find it. Moreover, the provisions of the statutes referred to are for the protection of parties who are liable for the payment of such fees, and cannot be invoked by a clerk who has actually collected the fees, as shown by his execution docket, and has them in his possession as clerk.
Counsel for defendants insist that the examiner's report was not admissible in evidence because "there was a variance between the allegation of the plaintiff's complaint and the statement of the examiner referred to." Counsel do not point out in what the alleged variance consists, but the fact, if so, that there were some discrepancies in the items set out, would not render the report as a whole inadmissible. On proper motion the variant items could have been excluded from consideration, as they doubtless were by the court ex mero motu.
Defendants showed that at the expiration of plaintiff's term of office he had in his hands a number of executions, under which the clerk was entitled to items of cost, as to which plaintiff made no official return. But no evidence was offered to show that any of these executions could have been collected by reasonable diligence, nor that the clerk suffered any injury by reason of plaintiff's negligence in that regard.
Examiner Malcolm, who made the report, was properly allowed to testify as to the balance of the accounts between clerk and sheriff — the net amount due to the sheriff as shown by the official dockets — this under the exception noted by Mr. Greenleaf:
"Where the evidence is the result of voluminous facts, or of the inspection of many books and papers, the examination of which could not conveniently take place in court." 1 Greenl. on Ev. (16th Ed.) 691, § 563.
We have examined all of the matters discussed in the brief for appellants, and do not find that any error was committed by the trial court. The testimony was heard ore tenus, and we find nothing to impeach the correctness of the judgment rendered.
Affirmed.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.