Dade County v. Lyemance , 27 Ga. App. 420 ( 1921 )

Bloodworth, J.

(After stating the foregoing facts.) 1. The first contention of the plaintiff in error is that the judgment of the lower court is contrary to law because “ no former clerk or sheriff, not the immediate predecessor of present incumbents, is entitled to share in the distribution of said fund at all.” This contention is without any semblance of merit, as section 1114 of the Penal Code of 1910 completely refutes it. That section is as follows: “ Money arising from fines, or collected on forfeited recognizances in the superior courts, or for a violation of the penal laws, shall be first applied to the extinguishment of the insolvent lists of the officers bringing it into court and those of justices and constables pro rata, and then to the orders of former officers in proportion to their claims” (italics ours).

2. The next contention of the plaintiff in error is that the judgment is contrary to law because “ no former clerk or sheriff, nor the immediate predecessor of present incumbents, is entitled to share in the distribution of said fund until the amount due each of immediate predecessors of present incumbents is paid in full.” This contention is also without substantial merit. The law does not entitle the immediate predecessors of present incumbents to priority over former officers, unless such predecessor assisted in bringing the fund into court. In the case of Freeman v. Hardeman, 67 Ga. 559, 560, in which a clerk of the court who was his own predecessor in office claimed a priority in the fund in question over an older order of a former solicitor-general, the court, speaking through Justice Crawford, said: “ The claim of the clerk for his insolvent costs for previous years, not within his present term of office, was likewise rejected, and preference given to the administratrix of Montfort upon his oldest order. To determine whether that ruling was error, it is only necessary to inquire whether a former clerk of the court could be considered as one of those officers bringing the money into court. That it happened in this case that the individual person was the former clerk, does not change the rule of law specif3Úng what officers shall be entitled; its reference is to the officer, not the man.”

3. The next contention of the plaintiff in error is that the judgment is contrary to law because “ when officers bringing the fund into court are fully paid (the present incumbents) the balance of the money belongs to Dade couffiiy, and no former officer, except the immediate predecessor of present incumbents, is entitled to the same or any part thereof as against Dade county.” This contention is untenable, in view of the statute law of this State. Section 1114 of the Penal Code of 1910 specifically provides that money arising from fines and forfeitures shall be first applied to the extinguishment of insolvent costs of the officers bringing it into court, and “ then to the orders of former officers in proportion to their claims.” Section 1116 provides that “ The officers of the several courts, including the prosecuting officers, shall pay into the county treasury of the county where said court is held all moneys arising from fines and forfeitures by them collected, and, on failure to do so, shall be subject to rule and attachment, as in case of defaulting sheriffs. But no such officer shall be required to pay into the treasury, as aforesaid, any such moneys, until all- the legal claims, and the costs due the justices and constables in the particular case by which the funds for distribution were brought into court, shall have been allowed and paid.” Section 1118 provides that “ The moneys, so paid in, shall be kept separate and distinct from the county funds arising' from other sources, and distinct and separate accounts of said funds shall also be kept as to what court the same was received from, by the county treasurer, and the same shall be paid only for insolvent costs, and in cases where defendants have been acquitted in the manner hereinafter directed.” And section 1119 provides that “ Any officer having a claim against said fund for insolvent costs, or in cases where defendant has been acquitted, if the same accrued in the superior court (or a magistrate’s court prior to indictment), shall present to the judge of the superior court an itemized bill of costs claimed; and if the same shall be approved by him, he shall order the same entered on the minutes of the court, and the same shall be a warrant on the county treasurer, to be paid by him out of any fines and forfeitures in the treasury received from the superior court.” It is clear even from a casual reading of the above sections that after the costs of the officers bringing funds into court have been paid out of money arising from fines and forfeitures, the surplus does not belong entirely to the county to the exclusion of former officers who have itemized bills of costs approved by the judge, although such officers may not be the immediate predecessors of present incumbents. See Bartlett v. Brunson, 115 Ga. 458 (41 S. E. 601), in which it was held: “ The law directing how the solicitor-general shall distribute the moneys he collects and where the surplus shall be paid, it follows that where the solicitor-general has a surplus in his hands he cannot be ruled by a former solicitor, not his immediate predecessor, and required to pay the surplus to the latter. Such surplus must be paid to the county treasurer, and the remedy of the former solicitor, if he has orders on the insolvent fund, is to collect his claims out of the county treasurer when the latter has-funds available for this purpose” (italics ours). See also, in this connection, Johnson v. Lastinger, 148 Ga. 656 (98 S. E. 78).

4. The next contention of the plaintiff in error is that the judgment is contrary to law because the “ issuing of subpoenas for witnesses before the grand jury by the clerk is not a proper charge against the fine and forfeiture fund.” This contention is likewise without merit. Section 1133 of the Penal Code of 1910, in setting forth in the fee bill the fees or costs to be paid the clerk for specified services, and fixing the amount to be paid for such service, provides that “ the clerks of the superior courts' shall be entitled to charge and collect the following fees for official duties performed by them, to wit: . . . For subpoenas, each 15 cents.” Obviously, the language of this section is broad enough to include all subpoenás issued by the clerk, and it is therefore immaterial whether they be grand-jury or petit-jury subpoenas. In the case of Clark v. Clark, 137 Ga. 189 (2) (73 S. E. 15), it was held that “ insolvent criminal costs are costs in criminal cases which the statute provides shall be due sheriffs as fees for services rendered in criminal cases and which are expressly and specifically provided for-as to the services rendered, and the amount to be paid therefor, and which are insolvent for the reason that they cannot be collected either on account of the insolvency of the party liable therefor, or otherwise.” The issuing of subpoenas, whether grand-jury or petit-jury subpoenas, is a service for which provision has been made in the fee bill for clerks, and consequently is properly chargeable as insolvent costs.

It follows from what has been said that the judgment of the lower court in distributing the funds in question, and in holding that the issuance of grand-jury subpoenas was a proper charge against the fines and forfeitures fund, was not contrary to law for any reason assigned.

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.