Stickney v. Huggins , 10 Ala. 106 ( 1846 )

COLLIER, C. J.

The act of 1839, so far as material to the present case, is as follows“ If any person authorized by law to collect the taxes in any of the counties of this State, shall fail to collect and pay the same to the county treasurer, within the time prescribed by law, the Judge of the county court, if of his own bnowdedge, or on' complaint of the treasurer, shall hold a special court within twenty days thereafter, to try* such delinquent collector; and if it appear that he has so failed to collect, or pay over such taxes, said court shall enter judgment in favor of the treasurer, against such collector and his security, or securities in office, for the amount of such county tax so due and unpaid, together with ten per centum as damages, on the amount,” &c. [Clay’s Dig. 575, § 96.]

Although this section addresses itself in mandatory terms to the Judges of the county courts, yet it cannot be understood, that in requiring him to act within twenty days from the time the default is developed, his right to act is limited to that period. Time was not prescribed for the benefit of the collector, but rather to quicken the diligence of the Judge, so that justice might be promptly administered, and the greater certainty of collections insured.

According to all analogies, in directing the proceedings to be instituted within a definite time, the act must be considered as directory merely. It is the duty of the Judge to yield a ready obedience to its directions, but if he fails to do this, his authority to' act under it is not gone.

In the present case, the proceeding was had in conformity to the act, save only as to time, and the judgment rendered, here reversed. If the court, in the first instance, had jurisdiction, we think it clear, that upon the cause being remanded, it was competent for the Judge to give notice to the defendant, hold a special term, and dispose of it according to law.

It follows from what has been said, that the judgment must be reversed and the cause remanded.