Walden v. Nichols , 201 Ga. 568 ( 1946 )

1. The motion to dismiss the bill of exceptions is without merit.

2. The order of a judge of the superior court, ordering paid a bill of a court reporter, may be attacked as being invalid and as being such a claim as the judge was not authorized to approve and order paid.

3. A court reporter can not be paid more than $2500, for reporting felony cases in any one year, from the funds of any one county.

4. The treasurer of a county, against whom a mandamus proceeding is brought by a court reporter to enforce the payment of a claim alleged to be due him as official court reporter, may set off in that proceeding any amounts due the county by the reporter. In such a proceeding, neither the treasurer nor the county can obtain a money judgment against the reporter.

No. 15641. NOVEMBER 14, 1946. H. E. Nichols filed his petition for the writ of mandamus against C. O. Walden, as Treasurer of Floyd County, Georgia, in which he alleged in substance: that on April 23, 1946, he presented to Walden for payment an order, duly approved by the Judge of the Superior Court of Floyd County, in the sum of $150 for ten-days' work in attendance upon the court and for taking down the testimony and proceedings of the court as official stenographer at the April term, 1946, of Floyd Superior Court, and for the additional sum of $30 for transcribing the testimony of witnesses at a corner's inquest; that on July 31 he likewise presented to Walden for payment an order, duly approved by the Judge of the Superior Court of Floyd County, in the sum of $1350 for ninety-days' work — thirty days at sixteen hours a day and thirty days at eight hours a day — in writing out the evidence and proceedings of the court at the April term, 1946, of Floyd Superior Court, in the trial of criminal felony cases wherein convictions were had (five cases being listed, in all of which the charge was murder); and that Walden refused payment of these orders.

The defendant Walden demurred generally to the petition, contending that no cause of action was set out. He demurred specially to the item of $30 for transcribing testimony at a coroner's inquest. The petition was specially demurred to "upon the ground that it is nowhere alleged therein that the payment of the orders presented, together with orders paid during the year 1946 to said court reporter, would not exceed the sum of $2500." There were other grounds of special demurrer not necessary to be here set out.

Walden answered and set forth the following facts as reasons for refusing to pay the orders presented: that he had already paid to Nichols the sum of $1710 for services rendered during the year 1946, and payment of the orders here involved would exceed the sum of $2500 for services rendered during the year 1946; that Nichols had previously been paid the sum of $1395, which was paid illegally for the reason that bills had been rendered for services for attending court when no criminal cases had been tried, and Nichols was therefore indebted to the county in this amount; that during the year 1943 he was paid as reporter the sum of $2793, in 1944 the sum of $3836, in 1945 the sum of $4715, and that in each of said years the reporter was legally entitled to collect only the sum of $2500, and was therefore indebted to the county for the sums in excess of $2500 collected for each of said years. The answer was demurred to, paragraph two of the demurrer reading as follows, "That said answer sets forth no defense to the action sued upon." The answer was further demurred to on the ground that the order of the judge of the superior court was conclusive as to the amount to be paid, and because the question presented is a political question and is not one for adjudication by the courts.

Floyd County intervened in the proceedings, and rulings on the intervention are the subject-matter to be dealt with in case No. 15660 (Nichols v. Floyd County, Post, 575).

The trial judge passed the following order: "The above-styled cause coming on to be heard pursuant to the order of the court and the continuance thereof, agreed to by all parties, and same being present in court and represented by counsel on this date, said hearing being on the demurrer filed to the petition, the demurrer filed to the answer and upon the issue of the granting or refusing of a mandamus absolute, it is considered, ordered, and adjudged by the court that part of paragraph 4 of the demurrer to the petition attacking that part of exhibit ``A', seeking to recover the sum of $30 for transcribing the testimony of witnesses at a coroner's inquest, is sustained, it appearing that this order, although signed by the court, was for services rendered by the plaintiff in another court, and is, therefore, not recoverable by the plaintiff upon the order of the judge of the superior court; all the other grounds of the demurrer to the petition are overruled; paragraph 2 of the demurrer to the answer is hereby sustained and said answer stricken, the other grounds thereof are not ruled upon.

"Upon further consideration of said cause, the court is of the opinion that no issue of fact is presented, and that said petition sets forth a cause of action for a mandamus absolute; it is, therefore, further considered, ordered, and adjudged that mandamus absolute issue, and that the defendant, C. O. Walden, as Treasurer of Floyd County, Georgia, be and he is hereby required to issue checks in accordance with the allegations of the petition, subject to ground four of the demurrer to the petition hereinbefore sustained." The exception is to this judgment. 1. The motion to dismiss is without merit and is controlled by the ruling in division two of this opinion.

2. We deal first with the question whether or not the order of a judge of the superior court, approving and ordering paid a bill of the official court reporter, is conclusive.

The Code, § 24-3104, provides, among other things, that the court reporter's bill shall be paid "on the certificate and order of the judge." This court has passed upon cases, and decided the issues presented, where the bills had been approved and ordered paid just as they were in the instant case. See Henderson v.Parry, 93 Ga. 775 (21 S.E. 144); Ragland v. Palmer,93 Ga. 777 (21 S.E. 145); Freeney v. Geoghegan, 177 Ga. 142 (169 S.E. 882) We recognize that those cases are simply physical precedents, since the identical question here made does not appear to have been raised. This court has in instances held, however, that the order of a judge of the superior court for the payment of certain alleged expenses incurred in the operation of the court over which he presided was invalid and could not be paid. In Maxwell v. Cumming, 58 Ga. 384, this court held that a detective or special officer, appointed by a judge of the superior court to locate and arrest an escaped prisoner and bring him back to the county from which he escaped, could not enforce the payment of his claim by mandamus. In Freeney v.Geoghegan, supra, this court held that an expert accountant, employed by the solicitor-general to prepare and assimilate evidence, although his bill was approved and ordered paid by the judge of the superior court, could not enforce the payment of his claim by mandamus. In Houston County v. Kersh, 82 Ga. 252 (10 S.E. 199), a newspaper attempted to collect its bill for publishing grand-jury presentments (this case being decided before the law was expressly amended so as to provide for the payment of a bill of this kind). The bill was approved by the judge of the superior court. This court held that payment of the bill could not be enforced by mandamus. The rule seems to be well established that a claim or account of the character here involved, although approved by the trial judge, may be attacked by showing that the claim is in fact invalid, and is such a claim as the trial judge was not authorized to approve and order paid. Nothing to the contrary is held in Lamb v. Toomer, 91 Ga. 621 (17 S.E. 966). The only question there decided was that the treasurer, and not the county commissioners, was the proper person to name defendant in the mandamus proceeding.

3. The next question presented is whether or not a court reporter can be paid more than $2500, for reporting felony cases in any one year, from the funds of any one county. We have three Code sections dealing with this question, reading as follows: "On the trial of all felonies the presiding judge shall have the testimony taken down, and, when directed by the judge, the court reporter shall exactly and truly record, or take stenographic notes of, the testimony and proceedings in the case, except the argument of counsel. In the event of the jury returning a verdict of guilty, the testimony shall be entered on the minutes of the court or in a book to be kept for that purpose. In the event that a mistrial results from any cause in the trial of a defendant charged with the commission of a felony, the presiding judge may, in his discretion, either with or without any application of the defendant or State's counsel, direct that a brief or transcript of the testimony had in the case be duly filed by the court reporter in the office of the clerk of the superior court wherein such mistrial occurred. If said brief or transcript shall be ordered, it shall be the duty of the judge to provide in said order requiring such brief or transcript for the compensation of said reporter, and that said transcript or transcripts shall be paid for on the order of said judge, as now provided by law for transcripts in cases wherein the law requires the testimony to be transcribed, at a rate not to exceed that provided by existing statutes in cases wherein a sentence is made in felony cases: Provided, however, nothing herein contained shall be deemed or construed to in any wise impeach or avoid the operation of section 24-3104." § 27-2401. "The compensation of the reporter or stenographic reporter, for taking down testimony in the trial of such criminal cases as are required by law to be recorded shall be $15 per day, which sum shall be paid by the county treasurer, or other officer having charge of the county funds of the county wherein such criminal cases shall be tried, on the certificate and order of the judge as to the number of days he has been employed, but not exceeding $2500 shall be paid in any one year for work done in that year out of the funds of any one county. In cases of conviction, the costs of reporting, as provided in this section, shall be entered up against the defendant, on which judgment the clerk of the superior court shall issue execution, and the money arising therefrom shall be deposited in the treasury of the county where such conviction was had, to be held as other county funds are held. Such reporter or stenographer shall, for reports of evidence and other proceedings by him furnished, be paid by the party requesting the same at a rate not to exceed 10 cents for each 100 words." § 24-3104. "Any contingent expenses incurred in holding any session of the superior court, including lights, fuel, stationery, rents, publication of grand jury presentments when ordered published, and similar items, such as taking down testimony in cases of felony, etc., shall be paid out of the county treasury of such county, upon the certificate of the judge of the superior court, and without further order." § 24-3005.

The first Code section above quoted appears to have been codified from Ga. L. 1876, p. 133, and the second from Ga. L. 1884-5, p. 130. Prior to the act of 1876, supra, there appears to have been no provision for the payment of court reporters other than in the Code, § 24-3005, providing for their payment as contingent expenses of the court. Section 24-3104 in express terms limits the amount that can be paid by any county in any one year to the sum of $2500 "for taking down testimony" in felony cases. In 1893 the case of Henderson v. Parry, supra, was before this court. At that time all of the above-quoted sections appeared in our Code. This court in that case said: "The phrase ``taking down the testimony,' as used in section 4696(b) of the Code and in the act of October 12, 1885, providing for the compensation of official stenographic reporters, embraces the whole process of reproducing the testimony of the witness in ordinary and intelligible writing." The court in that case was dealing expressly with the act of the legislature of 1884-5, supra, in which the limitation of $2500 was fixed. This ruling could have no other meaning than that the reporter is entitled to $15 per day for the time required to take down and transcribe the testimony in felony cases, but that for this service he can collect no more than $2500 in any one year from any one county. Construing Code, §§ 27-2401, 24-3104, and 24-3005 together, it appears to have been the evident legislative intent to limit the amount that a court reporter can collect from any one county in any one year to the sum of $2500.

4. The final question for consideration is whether amounts due the county by an official court reporter can be set off in a mandamus proceeding against claims of the court reporter against the county of the character here involved.

In Butler v. Pape, 183 Ga. 599 (188 S.E. 890), it was ruled as follows: "In a mandamus proceeding filed by the assistant probation officer appointed under the act approved August 16, 1913 (Ga. L. 1913, p. 112), it was not permissible to attack the conduct and qualifications of such assistant probation officer. Any proceeding for that purpose should be separate and distinct from the mandamus action." In Freeney v. Pape,185 Ga. 1 (7) (194 S.E. 515), this court used the following language: "While, under the ruling of this court in a former mandamus action by this petitioner, it would not be permissible to defend against a mandamus proceeding by an officer by attacking the conduct or qualifications of such officer, since ``any proceeding for that purpose should be separate and distinct from the mandamus action' (Butler v. Pape, supra; and see, to the same effect, Holder v. Anderson, 160 Ga. 433 (8), 446,128 S.E. 181; Goree v. Greenwood County Supervisor, 93 S.C. 312,76 S.E. 705), still, since the gist and the only purpose of this mandamus proceeding by the assistant probation officer, as shown by its prayer, was to require the defendant to pay to the plaintiff a specified amount of money, a judgment for which he was not authorized to obtain in an ordinary action at law, the allegations of the answer, setting up that the plaintiff had collected under court orders $138.50 in fines from probationers, which he had failed to turn over to the county treasurer, sought merely to reduce the amount of the plaintiff's claim by a setoff or counterclaim claim due to the defendant as the officer charged by law with the custody of such funds. The matter so pleaded being thus purely defensive and directly germane to the question as to whether the plaintiff was entitled to the full amount of the claim or a less amount by reason of the facts alleged in the plea, it was error to strike the entire answer on oral motion."

We conclude that the defendant in the court below was authorized under the law to plead and prove in the mandamus proceeding any amounts due by the plaintiff to the county, as a defense to the amount claimed to be due in the mandamus proceeding; but any suit or proceeding to obtain a money judgment against the plaintiff in the court below "should be separate and distinct from the mandamus action."

Judgment reversed. All the Justices concur, except Duckworth,J., who dissents.