Lewis v. Colquitt County

1. Exception to an amendment comes too late at a term subsequent to that at which it was allowed and filed without objection.

2. "A general demurrer to a petition is equivalent to a motion to dismiss the petition, and where such a demurrer is filed after the allowance of an amendment to the petition, the sole question raised by the demurrer is as to the sufficiency of the petition as amended. The right so to amend is not thereby questioned." Central of Georgia Ry. Co. v. Jones, 24 Ga. App. 532 (101 S.E. 710).

3. Where the county commissioners proposed to settle for $1200 all of the amount that the auditors claimed was due the county by the clerk of the superior and city courts, and to avoid delay, the clerk agreed to deposit $1200, on condition that the difference as to the amount due should be adjusted later, and at the same time the county commissioners agreed that, if on investigation, the amount proved to be incorrect, the matter would be adjusted by refunding to the clerk, the plaintiff in the instant case, the amount incorrectly charged to him: Held, that this was not a voluntary payment, and hence whatever part of the $1200 that had been incorrectly charged to the plaintiff could be recovered by him as for money had and received.

DECIDED JUNE 22, 1944. R. J. Lewis, clerk of the superior and city courts of Colquitt County, sued the county to recover $1200 alleged to have been wrongfully had and received by the county. The parts of the petition as amended material to an understanding of the errors complained of are as follows:

"4. On or about the 1st day of March, 1941, the defendant county, acting through its said board of commissioners, employed Harvey H. Hunt Company, accountants of Atlanta, Ga., to audit the books of the clerk of said superior and city courts, for the period beginning May 1, 1939, and ending March 31, 1941, with particular reference to such money as had become payable by your petitioner to the county out of fines and costs paid to him as clerk of said superior and city courts.

"7. In the early part of April, 1941, the exact date being to petitioner unknown, said accountants orally reported to said commissioners that your petitioner had been found by their examination of the records to be withholding from the county a large sum of money which should have been previously paid by your petitioner over to the county.

"8. The said report was utterly false.

"9. On Saturday, April 5, 1941, before the grand jury was to assemble on the following Monday, April 7, 1941, the said board of commissioners met, for the purpose of hearing the oral report of their said accountants, and did then and there hear it. The board of commissioners also then and there called your petitioner before it. Sheriff T. V. Beard was also present during a part of that meeting.

"10. Said board of commissioners then and there, on April 5, 1941, heard the said accountant orally repeat his said false charges against your petitioner.

"11. In pursuance of that report, said board of commissioners then and there, on April 5, 1941, first orally demanded that your petitioner pay over to them for the use of the county the sum of $2000, which he refused to do, telling the said commissioners that he had not received and withheld from the county any money belonging to it. Later, during the same meeting, the said commissioners orally reduced the amount of its said claim to the sum of $1600, which sum your petitioner likewise refused to pay, on the ground that he had not received and withheld from the county any money belonging to it. Still later, but during the same meeting, the said commissioners orally offered to accept the sum of $1200 as a settlement in full of the county's said claim, based on said auditor's report, against your petitioner; and the several members of the said board of commissioners then and there orally threatened that, unless said last-mentioned sum was promptly paid over to the county, the board would proceed against the sureties on your petitioner's official bond in an effort to collect it, and would also proceed to have your petitioner's official bond cancelled, and would also lay the whole matter before the grand jury during the week following next thereafter.

"12. Your petitioner was furnished with no itemized bill of particulars to show how the amount of said claim was arrived at, nor was he allowed time in which to investigate the truth or falsity of the several items going to make up the aggregate amount of said claim or claims.

"13. Sheriff T. V. Beard, cooperating with said commissioners, then and there urged your petitioner to pay the said demand of $1200, to avoid the embarrassment and scandal which was otherwise sure to follow; and he further voluntarily offered to sign a note as petitioner's surety if petitioner would borrow that sum from the bank and pay off said last demand in the sum of $1200. In connection with their said demand, the county commissioners then and there further proposed that your petitioner merely deposit said sum of $1200 with them, to be returned to your petitioner in the event it should later appear that your petitioner was not indebted to said county as then and there represented by said auditor.

"14. Thereafter, and as a direct result thereof, your petitioner did on April 5, 1941, borrow the sum of $1200 from the Moultrie Banking Company, said T. V. Beard signing with your petitioner the note given for the said loan; and the said sum of $1200 was, on the same day, paid over to the said board of commissioners for the said county, under and by reason of the facts and circumstances aforesaid. The said sum so paid to the defendant county was not paid as a final settlement of the controversy, but was paid merely as a deposit in line with the said proposal of the county commissioners for such a deposit.

"15. The said sum of $1200 so paid by your petitioner to the defendant county on April 5, 1941, was by the board of commissioners applied generally to the legitimate uses and benefit of said county, the same being mingled with the county's general funds. The said deposit was so made both to allow your petitioner time in which to investigate the status of the several fines then and there claimed to have been collected by him, and also to prevent the county commissioners from proceeding against your petitioner and his official bond as they then and there threatened to do. Through the investigation subsequently made, your petitioner discovered that all of the fines listed in Schedules 1 and 4 of the auditor's report which had been paid at all had been paid to the sheriff.

"16. Subsequently, on a date to your petitioner unknown, said accountants made to said board of commissioners a written report, dating it April 5, 1941, in which they undertook to justify the said claim of $1200 against your petitioner.

"17. In the letter of said accountants submitting said written report to said commissioners, it was said, in part: `The clerk has, on April 5, 1941, deposited with the commissioners funds in the amount of $1200 to pay the amount shown on the statement following, and the balance to apply on the deficiency arising from the items on Schedule 4 and should there be no deficiency, the difference is to be refunded to R. J. Lewis, clerk.'

"18. In said letter submitting said written report, it was further said, in part: `The sheriff, T. V. Beard, has agreed to accept his portion, approximately one-third of the total as costs due him, with the provision that the records would be maintained and kept by Mrs. Amber Wells, and to be supervised by the sheriff, T. V. Beard, until such time as he, Beard, is paid in full.' Since depositing the said sum of $1200 with the county commissioners as aforesaid, your petitioner has learned that Sheriff T. V. Beard and his deputies had themselves collected the sum of at least $815 of the fines which the said auditor was then and there charging to your petitioner, and the sheriff was at that time withholding the said sum from your petitioner, without your petitioner's knowledge or consent, and is yet withholding the same without your petitioner's consent.

"19. (a) Included in said written report to said board of commissioners, as `schedule 1,' was a list of alleged cases, purporting to show a list of 157 criminal cases disposed of in said city court of Colquitt County, with the number of each case, the name of the defendant, and the amount of the fine, wherein the said accountants represented your petitioner as having collected, or in some way received all of said fines, amounting in the aggregate to $5,487.35. (b) But, notwithstanding the only money payable to the county out of any one or more of said fines was the solicitor's fees, and the solicitor's fees out of such cases as might be or come within the benefits of the `insolvent fund,' the said accountants, neither in said `schedule' nor elsewhere in said written report, undertook to set out the exact part of each of said fines properly payable to the county as solicitor's fees, nor did they undertake to set out the exact part properly payable to the sheriff as his costs in each case, nor the exact part properly payable to any magistrate, nor the exact part properly retained or retainable by the clerk as his costs in such case, nor the exact amount of any fine or fines which should have been passed to the `insolvent fund.' (c) The said written report made no effort to show the exact amount payable to the sheriff as his costs out of any one or more of said fines; but the accountants contented themselves with the sheriff's representation, as shown in paragraph 18 above, that he was entitled to `approximately one-third of the total as costs due him.'

"20. (a) The said written report of said accountants was utterly false in so far as it tended to show that your petitioner had received and retained any money whatever belonging either to the county, as solicitor's fees, or to the sheriff, as his fees, in any one or more of said entire list of 157 cases set out in said `schedule 1.' (b) It was false in so far as it tended to show that your petitioner had received and willfully retained any money belonging to the county or to any officer of court in any case mentioned in any schedule or list of cases shown in the said written report. (c) In point of fact, in said entire list of 157 purported cases, in which said accountants represented your petitioner as having collected all of the fines, without making any disbursement thereof, there was not a single case in which your petitioner had collected such fine without making disbursement of the same, by paying to the county and to the sheriff their respective parts of the fines actually coming into your petitioner's hands for that purpose, retaining nothing but his own proper costs. Nor did your petitioner ever receive and retain any part of any fine in any case whatever other than his own proper costs, in so far as he knows or believes; and he now stands, and has always stood, ready to correct any error that may have been made by him in any case when and if the error is shown to have been made by him or his authority.

"21. Your petitioner is now prepared to show, by his own oath, that he did not receive any of the fines listed in said `schedule 1,' or any other fine, except as above set forth; and he is now further prepared to show, by the alleged defendants themselves (in so far as they can be found and brought into court as witnesses) that they paid their respective fines to Sheriff T. V. Beard, or to his deputy, or not at all, — that they did not make payment to your petitioner.

"22. Since the said sum of $1200 was, on April 5, 1941, extorted from your petitioner in manner and form as aforesaid, Sheriff T. V. Beard, in cooperation with said commissioners, has usurped, or attempted to usurp, the official right and duty of your petitioner as clerk of said superior and city courts to collect and disburse all fines in criminal cases in both courts. He has not, however, paid to your petitioner any part of any fine collected by him during that period. Whether he has made disbursement to the county or retained the whole amount collected by him is a matter outside of your petitioner's knowledge. (a) The sole basis for his such pretended right, and the sole basis for the position of said commissioners with respect thereto, is shown by that part of the auditor's report set out in the 18th paragraph of this petition, which your petitioner repudiates, and has repudiated in open court, demanding the right to receive and disburse all fines in criminal cases as required of him by law.

"23. Heretofore, to wit, on March 4, 1942, your petitioner notified the defendant county of his said demand in writing, and duly filed it with the clerk of said board of commissioners."

At the term to which the petition was returnable, the defendant filed a demurrer and answer. The demurrer states that "there is no cause of action set out in said petition and the facts therein alleged are insufficient to constitute a cause of action in favor of the plaintiff and against this defendant;" and that it appears from the allegations of said petition that the plaintiff voluntarily made the payment, which he now seeks to recover, by way of a compromise and in settlement of a disputed liability to the defendant, and no reason is alleged why he should now be allowed to recover. At the next term and before the court had passed upon this demurrer the plaintiff filed an amendment to the petition which was duly allowed without objection and ordered filed. At the second term after the amendment was thus allowed, the plaintiff filed a second demurrer which stated that: "(1) The plaintiff in the above stated case having filed an amendment to his petition, the defendant now renews its demurrer thereto. (2) The defendant demurs and moves to strike said amendment because: (a) the said petition fails to set out any cause of action, and there is nothing by which the plaintiff may amend. (b) Said amendment seeks to introduce a new and distinct cause of action. (c) The allegations of the said petition seek to repudiate the allegations of the original petition because of action sought to be therein set out and are inconsistent with and contradictory to the allegations of the petition." Thereafter on the same day the court made the following order: "The within stated case coming on to be heard on the within renewal of the original demurrer to the petition and the within demurrer and motion to strike the plaintiff's amendment, upon consideration thereof the within general demurrer to and motion to strike said amendment is hereby sustained; and the original general demurrer to the plaintiff's original petition is hereby sustained in the first three grounds thereof. No ruling is now made on the other or special grounds of demurrer, which are left undisposed of, but without prejudice to the future rights of the parties. Done in open court, this October 5, 1943. W. E. Thomas, Judge Superior Courts, Sou. Jud. Circuit." The amendment to the petition having been filed at the next or second term of the court after the petition was filed, and the second demurrer not having been filed until the fourth term thereafter, the second demurrer comes too late, in that it was filed at a term subsequent to that at which the amendment was allowed without objection and ordered filed. "When an amendment was moved to a declaration, and allowed by the court, and no bill of exceptions was filed to the judgment, it is too late, at the next term of the court to move to dismiss the writ for any cause, which the amendment cures. That the amendment ought not to have been granted can not be said, after the party has submitted thereto, by failing to file his exceptions as required by law." Pettis v. Campbell, 47 Ga. 596. "Exception to an amendment comes too late at a term subsequent to that at which it was allowed." Life Association of America v. Ferrill, 60 Ga. 414 (2). "A general demurrer to a petition as amended does not raise the question as to whether allowance of an amendment should have been refused because it proposed to add a new and distinct cause of action." Aycock v. Williams, 185 Ga. 585 (196. S.E. 54). "An amendment to a petition adding a new cause of action should not be allowed, . . but if such an amendment has been regularly allowed and filed, and the petition as amended sets forth a cause of action, the same should not be dismissed on motion on the ground that the amendment adds a new cause of action." Dyson v.Southern Railway Co., 113 Ga. 327 (4) (38 S.E. 749). "A general demurrer to a petition is equivalent to a motion to dismiss the petition, and where such a demurrer is filed after the allowance of an amendment to the petition, the sole question raised by the demurrer is as to the sufficiency of the petition as amended. The right so to amend is not thereby questioned."Central of Georgia Ry. Co. v. Jones, 24 Ga. App. 532 (101 S.E. 710). A general demurrer which is equivalent to a motion to dismiss, can be made at any time during the trial. Gilmore v.State, 118 Ga. 299 (45 S.E. 226). Applying these rules of law to the record in the case, the only question properly presented for our consideration is, whether the petition as amended set out a cause of action.

The Code, § 20-1007, declares: "Payments of taxes or other claims, made through ignorance of the law, or where the facts are all known, and there is no misplaced confidence and no artifice, deception, or fraudulent practice used by the other party, are deemed voluntary, and can not be recovered back, unless made under an urgent and immediate necessity therefore, or to release person or property from detention, or to prevent an immediate seizure of person or property. Filing a protest at the time of payment does not change the rule." The defendant in error, by its demurrer, contended that the payment in the instant case was voluntary, and could not be recovered back in whole or in part, even though the plaintiff protested at the time of the alleged payment. The allegations of the amended petition do not, we think, show duress, or coercion, or that such undue advantage was taken of the plaintiff's situation as would bring this case within the provisions of § 20-1007. See Williams v. Stewart,115 Ga. 864 (42 S.E. 256); Eibel v. Royal Indemnity Co.,50 Ga. App. 206 (177 S.E. 350). One of the definitions of protest given in 34 Words Phrases, 646, is that a protest is a "statement by the tax-payer to the collecting officer that he makes payment unwillingly because he believes that the tax is invalid." Webster says "a protest is a solemn declaration of opinion." In Jaynesv. Heron, 46 N.M. 431 (130 P.2d 29, 142 A.L.R. 1191), it was said, "A `protest' against payment is a formal declaration made by a person interested or concerned in some act about to be done, or already performed, whereby he expresses his dissent or disapproval, or affirms the act against his will." And in International Contracting Co. v. Lamont, 155 U.S. 303, 310 (15 Sup. Ct. 97, 39 L. ed. 160), the court said: "A party can not avoid the legal consequences of his acts by protesting at the time he does them that he does not intend to subject himself to such consequences." Generally speaking, "protest" partakes somewhat of the nature of "notice" given by one party to another. In the instant case the suit is based upon anagreement by both of the parties. The county commissioners having proposed to settle for $1200 all of the amount the auditors claimed was due the county by the plaintiff, the plaintiff, on his part, thereupon agreed to deposit $1200 to avoid delay, on condition that the difference as to the amount due should be adjusted later, and the county commissioners, on their part, at the same time agreed, if the amount proved to be incorrect on investigation, to adjust the matter by refunding to the plaintiff the items or amount incorrectly charged to him. Such an undertaking may be enforced.

The allegations of fact in the petition, to wit: that the plaintiff and the defendant both agreed that the $1200 was merely deposited with the county commissioners to allow the plaintiff to investigate the status of the several items charged against him by the county auditor, in his report to the county commissioners; that it was deposited to prevent the county commissioners from proceeding against the plaintiff and his official bond, as they then and there threatened to do; and that in the event it should later appear that the plaintiff was not indebted to said defendant, as represented by said defendant, the money was to be returned to the plaintiff, show none of the elements of "protest." We think the allegations of the petition, as amended, show that a voluntary payment was not intended, as urged by the defendant in its demurrer. We see no reason why such an understanding, as alleged in the petition, may not be enforced — the understanding being, that the deposit of $1200 was made on condition that it was to be refunded, if it should ultimately be determined that the payment was improperly demanded. Speed Oil Co. v. Aycock, 188 Ga. 46 (2) (2 S.E.2d 666); Sheppard v. Lang, 122 Ga. 607 (50 S.E. 371); Finnegan v. City of Sioux City, 112 Iowa 232 (83 N.W.. 907); Art Color Printing Co. v. Little, 164 N. Y. Supp. 2d, 24, 25; Stipp v. Johnston, 68 Ill. 176; Jaynes v. Heron, supra; Bailey v. Minge, 16 Ala. App. 269 (77 So. 419); 48 C. J. 741, § 292. The petition as amended set forth a cause of action and the court erred in sustaining the general demurrer.

Judgment reversed. Broyles, C. J., and Gardner, J., concur.