Collier v. Powell , 23 Ala. 579 ( 1853 )

LIGON J.

The proceeding in the court below was doubtless intended to be conformed to the eighteenth section of the act of 1847-8, or the twenty-seventh section of the act of 1849-50, which are in effect the same, and in language nearly identical.— The latter is in these words: “It shall be the duty of the comptroller of public accounts, within twenty days after the default of any tax collector, in not paying into the treasury the taxes collected by him, or paid to him by the county court clerk, for license or otherwise, under this act, at the next term of the Circuit or County Court of Montgomery County, or of the county in which the defaulting collector resides, to move the court for judgment against him and his sureties, for the amount of the taxes not paid into the treasury ; and the court shall render judgment for such amount, on proof of fifteen days notice to the collector, against him and his sureties ; or where the collector absconds or secretes himself, or where the notice is returned ‘not found’ as to him, then against such of his sureties as may have been notified of the intended motion,” &c. — Pamp. Acts 1849-50 § 27 p. 23 ; ib. 1847-8 § 18 p. 8.

Both these statutes require the tax collector to be a party to the notice, in every case ; but if it appears that he absconds or secretes himself, or the notice issued to him is returned “not found,” judgment may be rendered against such of his sureties as may be served with notice.

This proceeding is summary, and strictly statutory ; it is therefore indispensable to its regularity that it should conform substantially to the provisions of the act by which it is authorized. A departure in this respect, if it appear by the face of the notice, will be fatal on demurrer. The notice here shows that Wilson, the tax collector, is not only no party to it, but that he was dead at the time of its issue. This failure to make the collector a party to the notice is a departure from the requirements of the statute, which, in cases under similar acts of the legislature, we have invariably and repeatedly held to be fatal to the recovery.—Orr v. Duval, 1 Ala. 262; Mason & Daniel v. Brazier, ib. 635; James v. Auld & Spear, 9 ib. 462; Logan v. Barclay, 3 ib. 361.

But we are referred by the counsel for the appellant to the act of 1841, (Clay’s Digest 536 § 14,) as authority for proceeding against the sureties in this case, without noticing the principal. The act referred to gives him no aid, as by its terms it is limited to motions against sheriffs, and we are not allowed to extend its provisions.—James v. Auld & Spear, supra.

The court below erred in rendering judgment against the State for costs. The rule with regard to costs established by our statute, (Clay’s Digest 316 §20,) does not include oases in which the State is plaintiff and fails in its suit; nor have we any statute which allows cost in such cases; and in the absence of legislation upon the subject, costs cannot be adjudged against the State.—United States v. Barker, 1 Peters 150; Smith on the Con. of Statutes § 431.

The statute providing that the State may be sued, and directing how the judgment shall be satisfied, (Clay’s Digest 339 § § 143,144, 145, 146,) has no application to this, or any other case in which the State is plaintiff and fails in its suit.

The judgment of the court below must, therefore, be corrected here, so far as it rolates to the costs, without cost to either party ; but the case will not be remanded, as it is evident the plaintiff can never recover in the present suit.