Tucker v. Gillespie , 169 Ala. 491 ( 1910 )

MAYFIELD, J.

The case made for appellant on this appeal is stated by counsel as follows:

“This is a proceeding to test the constitutionality of the act of the Legislature of Alabama approved August 26, 1909, entitled: ‘An act to regulate the disposition and disbursement of witness fees collected by clerks of courts of record and which fees have not been paid out to the parties entitled thereto within two years after collected by the clerk.’ S'ee Acts of Alabama Special Session 1909, p. 213. This proceeding originated by a motion for summary judgment against defendant, as clerk and register of the city court of Birmigham, under article 4, c. 140, of the Code of 1907, for failure to pay over to movant fees clue him as a witness, which hacl been collected by defendant. The motion was overruled, and movant takes this appeal.

“The motion shows that defendant, as clerk and register of the city court of Birmingham, collected on December 20, 1902, fees due movant for prior attendance as a witness in a case in said court which had been then terminated; that defendant had held such moneys up to ihe time the motion was made; that movant did not know until after January 1, 1910, that he had collected same; and that defendant had failed to pay .over same to movant on his demand, assigning as defendant’s excuse the act of the Legislature above referred to. The motion alleged that the act was violative of the Constitutions of the United States and of the state of Alabama for tire reasons that: (a) Said act deprives movant of property without due process of law; (b) impairs the obligation of the contract; (c) extinguishes a vested right; and (d) that it was not enacted in a constitutional manner, for that the subject thereof is not clearly expressed in its-title. The averments of fact of the motion were admitted by the defendant by a written answer, only the allegation as to un constitutionality being controverted. It is to be noted that the sole point at issue is whether or not the statute is constitutional.”

The trouble is that the constitutionality of this statute was a question not properly before the lower court, and is not properly before this court. The facts stated in.the motion for a summary judgment against the clerk did not authorize a proceeding of that kind against that officer. The court had no jurisdiction of the subject-matter, and no power to render any summary judgment against the clerk on the facts stated in the motion, Avhether the statute in question is valid or void. The statute in question was not intended to confer or to take away any jurisdiction of the courts to render such judgment against clerks, nor is any such contention here made by counsel for appellant. The trouble is that the facts contained in the petition do not show any right on the part of the movant to proceed against the clerk under article 4 of chapter 140 of the Code. When an officer’s or witness’ fees have been taxed as a part of the costs, and a judgment has been rendered therefor, while it is in the name of one of the parties to the suit, it may be that the officer or -witness may have some equitable or legal right or claim, thereto, which, in an appropriate proceeding, might be protected; yet that question is not before us, and we do not decide it. We decide only that the summary remedy given by statute, under which this proceeding was instituted, -was not the appropriate or proper proceeding.

This was expressly decided by this court more than half a century ago, and has never-been departed from. In the case of Gary v. Boykin, 7 Ala. 156, it was held that the summary remedy given by our statutes was for the benefit of suitors in the courts, and did not apply to officers or witnesses seeking to recover costs only. This case was reaffirmed in Patterson v. Officers of Circuit Court of Mobile, 11 Ala. 742; and it was there held that a summary judgment, under the statutes, in favor of the officers, for fees, was a nullity. We can see no reason why a witness should have any better or more standing, for his fees, than do the officers of the court for theirs.

The lower court having rendered the only judgment that should have been rendered on the motion, the reasons impelling the court to it, or assigned by the court for it, become immaterial on appeal. It is not necessary, and, indeed, would not be proper, in this case, for this court to express any opinion as to the validity or effect of the statute requiring costs to be paid into the state treasury.

The judgment is affirmed.

Affirmed.

Dowdell, C. J., and Simpson and McClellan, JJ., concur.