Butler v. State ex rel. Franklin County ( 1902 )

Whitfield, C. J.,

delivered the opinion of the court.

It is essential to a correct decision of this case that the exact attitude of the parties should be held accurately in mind. This is not a' suit at law by the state against the tax collector and his sureties; nor is it a suit at law against the treasurer and his sureties. It is not a proceeding at law at all. It is a bill in chancery, wherein the state, not knowing which is liable to it, whether the tax collector or the treasurer, has impleaded both of said officials and the sureties on their respective bonds, the purpose being to ascertain which one is liable, and have a decree against that, one and his sureties, or whether both are liable, and in that case to have appropriate decrees against both and their sureties. To this bill the treasurer made answer, and making that part of his answer seeking affirmative relief a cross-bill against the tax collector, his codefendant — not defending with him against the state, but occupying a hostile attitude towards him — prayed the cancellation of the receipt warrant for the poll-tax money, $2,203.84, given by him to the tax collector, and the surcharging and correction of the tax collector’s books, and to have a count máde of the money in the hands of the tax collector, on the ground that said receipt warrant, as between him and the tax collector, had been executed on his part by mistake, and obtained by the tax collector on his part by fraud. The tax collector demurred to this cross-bill, and the court below sustained his demurrer, and then dismissed the original bill against the tax collector, and rendered a final decree against the treasurer and his sureties for the amount of said poll tax receipt warrant, interest, and costs.

It will thus be seen that equity had the whole matter before it, and all the parties in any way interested, and should have administered complete relief, not only as between the state and both officials, occupying an adversary position towards the state, but also as between the two officials who occupy adversary relations to each other.

The competency of the parol testimony offered by the treasurer to show that the receipt warrant for the poll-tax money, $2,203.84, had been executed through mistake by him, and obtained from him by fraud of the tax collector, is to be solved, therefore, not on the same precise ground on which it would be solved were this a suit at law on the treasurer’s bond by the state, and the question alone whether, in that sort of suit, the treasurer would be concluded by his receipt, and not allowed to explain or contradict it. This last question — whether, in such suit, testimony, might be introduced by the treasurer— it is unnecessary now to decide, and the only sound rule for any court is to limit decision to that only which the necessity of the case requires. It is only in this way that dicta can be avoided, and accuracy and precision as to what has been adjudged in any case secured. Looking, therefore, to the attitude of the case as between all parties as above shown, we think it is clear that it was competent in this proceeding, being such as we have described it, for the treasurer to show by parol evidence that the receipt was executed, through mistake on his part, and as a result of fraud on the part of the tax collector.

In this tripartite controversy, it was the business of the court to ascertain, as between the treasurer and the tax collector, which was liable, and for that purpose, surely, this testimony was competent, and this is the extent of our decision on this proposition. As somewhat aiding the solution of this question, generally, we refer to two cases which our own researches have brought to light, not referred to by any of the counsel in the case. They are Van Ness v. Hadsell, 54 Mich., at page 562 (20 N. W., 585); Williams v. Fitzpatrick, Governor, 20 Ala., 794 to 796, inclusive. Reference may also be had to our own cases of the State v. Oliver, 78 Miss., 9 (27 South., 988), and Mann v. Yazoo City, 31 Miss., 574. The last two cases are cited by counsel. It is, of course, thoroughly settled that the receipt warrant executed by the treasurer is only prima facie evidence against the sureties. See authorities cited by counsel for appellant, especially the note of Mr. Freeman to Coleman v. Pike County, Ala., in 3 Am. St. Rep., at page 749. And here it is to be specially noted that this decree is rendered not only against the treasurer, but his sureties.

We have made thus full and clear the peculiar attitude of the parties to this case with respect to each other on the very unusual state of case made by the pleadings in order that our ruling as to the competency of the parol evidence to explain the receipt warrant may be understood exactly as we limit it, and in order also to make it clear — as we think it must be— that the court below held the view that- the receipt warrant was conclusive not only against the treasurer, but also against his sureties, and that it could not be impeached by the sureties or the treasurer, even on the ground of mistake or fraud. It is true the learned court below did not rule expressly on the objection made to the parol proof offered to explain the receipt warrant; but we think it is clear from sundry rulings against the treasurer as to the admission and exclusion of the testimony in the current course of the trial, and especially from the action of the court in sustaining the demurrer to the cross-bill, that the view of the learned chancellor must have been as we take it to have been. If so, grievous error was committed against the appellants; and, furthermore, the decree would, in that view, be required to be dealt with not simply as a finding on the facts, but as a ruling on the evidence. Thus much as to the law of the case.

Turning now to the evidence in the case, since there must be a new trial, we have only this to say: That the tax collector ought at once to have counted the cash when the demand was made on him. He had the amplest time in which to have made that count before the trial of the cause in the chancery court. We wish carefully to abstain from any comment .upon the tes-, timony in the case beyond saying this: that, on the proof in the record, justice and fair play imperatively require that cash to be counted.

Reversed and remanded, with leave to the tax collector to answer the cross-bill in thirty days from the filing of the mandate in the court below.