Price v. Douglas County , 1887 Ga. LEXIS 89 ( 1887 )

Hall, Justice.

The affidavit of illegality filed by the county treasurer to this execution raises no issue as to the authority of the ordinary to issue the same, or as to his failure to observe any condition required by law, as to notice or settlement, previous to taking action thereon; and although these questions were discussed at the bar, we decline to express an ■ opinion upon them. If the execution issued, or was proceeding illegally upon any of these grounds, they should have been set up and insisted on in the affidavit, so that the opposite party might have been notified of the objections to this demand he was expected to meet.

(1.) The record puts in issue the fact that the county treasurer is in default, and insists that he has accounted for and paid over all funds received by him. ■

(2.) It denies indebtedness to the county, or that he has in hand any of its funds.

(3.) That the amount charged against him never came to his hands, and resulted solely from an erroneous calculation made by the ordinary; orders which he had paid off for large amounts, being absent when the calculation was made, having been placed in the hands of the grand jury, while investigating his accounts, and never returned by them to him.

(4. j And lastly, an offer to tender and set off against the county an order for $800 which he held, and which the county had refused to pay.

The jury, under the evidence and charge of the court, found all these issues against the affiant, and returned as due the county $1,723r2uu principal, with interest at 7 per cent, from the date of the execution.

A motion was made foi a new trial on various grounds, and refused, and thereupon he excepted to the judgment denying it.

1. The first ground we shall notice is the fourth, and that has, to some extent, been anticipated; if it had been insisted on, as already stated, it should have been set up in the affidavit of illegality, but independently of this, there was no error in refusing, on affiant’s motion, to quash the ft.fa. because it did “not appear that notice, in writing or otherwise,” had been given him before issuing the same. It is true that this was required by the act of 1825 (Prince’s Dig. 186), as was held,by this court in Foster vs. Cherokee County, 9 Ga. 185, 186. Since that decision was rendered, the processes for bringing defaulting county officers to account, and of enforcing the payment of arrearages found to be due from them, have been greatly modified and changed (Code, §§523, 524, 525, 563, 909 and citations); and the decision made in this case now under consideration is sustained by Walden, adm'r, vs. Lee County, 60 Ga. 298; S. C. 68 Id. 664, in which it was held that the notice was not a condition precedent to issuing thef.fa. This also disposes of the eighth'ground of the motion.

2. The fifth ground of the motion is without merit; the different conclusions reached by the committee of the grand jury who examined affiant’s accounts to ascertain his indebtedness as the result of several calculations made, could have thrown no possible light upon any issue on trial, and was wholly irrelevant, if they had not been objectionable upon other grounds, such as being the conclusions of witnesses rather than those to be reached by the jury. Besides, these calculations were made upon badly kept books, before the. errors that abounded in them had been corrected, and the court had allowed evidence to go to the jury showing what changes had been made in the books in order to rectify their inaccuracies and faults.

3. The sixth ground of the motion complains of error in rejecting the tax digest for 1883 and the order of the ordinary assessing the county tax for that year. It is insisted that these documents would have corrected an error in the receipt given by the affiant to the tax collector for $6,924.23, by showing that only some $4,000 was raised by the assessment for that year, and that the difference between these amounts would be sufficient to cover the default claimed to exist. The evidence in the case shows that the entire account, including these matters, had been gone over time and again; that in keeping his books, and in taking his vouchers and receipts, the law prescribing how this should be done had not been followed; that these books were faulty in many respects and had to be changed; that affiant was present when many of these changes were made and assented to them; that some were made during his absence, and when the account was completed, he went over it and assented to all of them; resort was had to other sources than his books, as the stubs in the books of the ordinary and the clerk of the superior court, together with the minutes of those two courts, in order to approximate the standing of the account between him and the county; that every item he claimed on account of lost or missing orders, receipts or vouchers, when supported by any kind of testimony, was allowed; and that every alleged mistake on account of double charges, etc., was corrected. The duties of this officer are carefully specified by law, and among others, he is required to keep books ; to take and preserve vouchers; to pay orders and take receipts for the amount paid and carefully file them away; the books showing all receipts, stating when, from whom and on what account received, and all amounts paid out, when, to whom and on what account paid. They must also contain a full description of all county or other forms of indebtedness as they are presented, together with a copy of the orders of the ordinary levying county taxes. This account thus kept, together with the vouchers sustaining its items, he is compelled to furnish to the grand j ury at the first session of the superior court of each year, and must make to them a full statement of the county treasury up to the time; he is further required, on the second Monday in January of each and every year, to file with the ordinary a full statement of his account, accompanied by his vouchers, for the preceding year, together with his estimate of the indebtedness of the county for the ensuing year, and the means of providing therefor, and to place his books before either of these bodies for examination whenever called on. He must appear before the grand jury or ordinary to render an account of his actings and doings as county treasurer, and to exhibit his books and vouchers whenever notified, and must publish at the court-house door, and in a public gazette, if one is published in the county, a copy of his annual statement to the ordinary. His books, when full, together with the vouchers or other files relative thereto or connected with the office, are to be deposited in the office of the ordinary, and afterwards are to be a part of his records. Code, §553, sub-sections 4 to 9, inclusive, 559.

Had the affiant observed these requirements, there would have been no necessity to resort to such testimony as that offered and rejected ; that they were not observed was attributable to his own negligence, of which he should not be permitted to take advantage, and thereby, to substitute evidence of a lower character for the record it was incumbent upon him to make out and deposit; that this cannot be done generally, or without some unavoidable casualty, is scarcely debatable. Nothing was shown to take this case out of the rule excluding such testimony, and we see no error in rejecting it.

4. The court was clearly right in rejecting the evidence, offered set out in the seventh ground of the motion. No levy had been made on the property of either of affiant’s securities; they had not joined in this affidavit of illegality filed by him, and would not have been precluded by the judgment rendered thereon from subsequently settingup any defence that belonged to them peculiarly as his sureties.

5. The verdict in this case was a most lenient one. The testimony imperatively demanded a finding in favor of the county. In concluding this opinion, it is perhaps well to remark, in order to avoid misapprehension, that it is not our purpose to commend or approve the indulgence extended by the county officials to this delinquent treasurer. Daily observation impresses us with the necessity of holding public agents, especially those entrusted with the collection, safe-keeping and disbursement of its money, to a rigid accountability.

Judgment affirmed.