FEBRUARY 16, 1950. REHEARING DENIED MARCH 15, 1950.
Mandamus. Before Judge Nichols. Floyd Superior Court. October 25, 1949.
Dean Owens and John W. Maddox, for plaintiffs in error.
Gary Hamilton and Harris Harris, contra.
1. In a mandamus action submitted by consent of the parties to the trial judge to pass on all questions of law and fact, it was not erroneous for him to grant a mandamus absolute requiring the county treasurer to make proportionate payments, from a sum of money admitted to be in his hands from fines and forfeitures in the City Court of Floyd County, to officers and representatives of deceased officers having claims therefor under an order and judgment dated May 31, 1934, admittedly valid at the time of its issuance, as against the contention that some of such officers, without complying with statutory provisions for the keeping of records and presentation and allowance of claims for insolvent costs, during a subsequent period retained unnamed sums of money from fines and forfeitures in said court during such latter period, where it appears from a statement of facts in said case, agreed to by all the parties, that at no time in such subsequent period were the amounts collected by the officers from fines and forfeitures sufficient to pay more than sixty (60%) per centum of their claims for insolvent costs arising in such later period.
( a) By reason of such stipulation an accounting was not unlawfully denied.
2. The trial judge did not err in granting a mandamus absolute for payment of the petitioners' claims, as against the contention that it failed to allow insolvent-cost claims of superior court officers, when neither the pleadings nor the agreed statement of facts contained any names, dates, or amounts relative to superior court officers nor any data that would in any wise show that the particular sums in the hands of the treasurer, derived from the City Court of Floyd County, were chargeable therewith.
3. Under the agreed statement of facts, the petitioners for mandamus absolute had a clear legal right to have payments made to them for insolvent costs under the order of May 31, 1934.
4. The judgment for mandamus absolute is not erroneous for any of the reasons assigned.
No. 16945. FEBRUARY 16, 1950. REHEARING DENIED MARCH 15, 1950.
Mrs. Ethelyn D. Camp, as administratrix of the estate of Lamar Camp (former Solicitor of the City Court of Floyd County), Eleanor Glover, as administratrix of the estate of S. L. Graham (former Clerk of the Superior Court and ex-officio Clerk of said City Court), M. E. Horton (former Sheriff of said county and said city court and assignee of his predecessor, O. L. Betts, in such office), H. L. Lanham (former Recorder of the Recorder's Court of the City of Rome), and George S. Reese and C. W. Bramlette (Justice of the Peace in said county), brought their petition for mandamus absolute against C. O. Walden, the Treasurer of Floyd County, to compel pro rata payment of insolvent costs in his hands amounting to $6453.80, arising from fines, forfeitures, and automobile condemnations in said city court. The petitioners claim under an order and judgment of the City Court of Floyd County, dated May 31, 1934. The balances alleged to be due them thereunder are as follows; Camp $6363.46; Graham $2957.75; Betts (assigned to Horton) $1991.95; Lanham $742.96; Reese $259.54; and Bramlette $81.24. Mrs. Edwina H. Collins, as executrix of W. B. Collins (another Justice of the Peace) intervened and claims $116.16, as set out in said judgment for her testator. It was further alleged in the original petition that there had been a demand upon said treasurer, that he had refused to pay, and that the said claims were first liens on said funds. By amendment the petitioners averred that heretofore there had not been any funds in the hands of the present or former treasurers with which to pay the claims set forth. An exhibit was attached, setting out a copy of the complete judgment of said city court of May 31, 1934.
In an answer, filed by the defendant treasurer, he admitted: that he was in possession of $6453.80, derived from insolvent costs in said city court; that the said judgment correctly stated the several amounts claimed for the petitioners, but that there were included in said judgment amounts in favor of other persons, to wit: J. P. Terry, J. P., $20.20; W. B. Collins, J. P., $116.60; C. H. Wright, J. P., $4.35; H. O. Littlejohn, J. P., $3.10; and S. A. Garrett, J. P., $1.95; that there were many others whose judgments appear of record in the minute books of said city court, as well as numerous officers of the superior court of said county, who have judgments for insolvent costs which are claims against said fund and who are entitled to participate therein. In the petition as amended, however, no specific names or amounts are set out in connection with or relative to the last-stated allegation. Said defendant further averred that he has refused to pay the petitioners because he is uncertain as to whether or not the same should be paid, and he cannot do so without an order for direction, for which he prayed.
Floyd County by its board of commissioners filed an intervention, which in substance alleged: that it has an interest in the funds, in that any surplus remaining after payment of legal claims thereon would belong to said county; that it is to the financial interest of the county that only legal claims against the fund be paid; that, while admitting the correctness of the judgment of May 31, 1934, at the time shown, the same does not purport to show the amounts now due; that said judgment included amounts in favor of other persons; (there was set out the same list and amounts shown above in the treasurer's answer); that there are many others whose judgments are of record in the minute books of said city court, as well as numerous officers of the superior court of said county who have judgments for insolvent costs which are claims against said fund. In its intervention, however, no specific names or amounts are set out in connection with or relative to the last-stated allegation. Said intervenor further alleged that Lamar Camp, S. L. Graham, and O. L. Betts, former officers of said city court, whose representatives are claimants, received large funds from fines and forfeitures, the amounts of which are unknown to intervenor, and applied the same to their fees and insolvent costs; that no accounting was made by them or either of them; that, after the December term, 1933, of said city court neither of them filed itemized statements as required by Code, § 89-705; that S. L. Graham, as clerk, failed to keep a book of fines as required by Code § 24-3336 as amended; that no order of said city court was made in favor of the petitioners or persons they represent after said order dated May 31, 1934, as provided by Code § 27-2903; that no insolvent-cost claim was made or filed as provided by § 27-2905; and, accordingly, all money arising from fines and forfeitures since said date should have been applied and paid against said judgments, as required by Code § 27-2912; and that an accounting of said funds coming into the hands of Lamar Camp, S. L. Graham, and O. L. Betts will reveal that a part, and possibly all, of the amount of said judgments in their favor have been paid. It was prayed by said intervenor that the personal representatives and assignee representing the deceased officers and the officers in life who are claimants be required to discover the sums received by them as fines and forfeitures and the disposition made of the same during the times since May 31, 1934, while they were in office and claiming thereunder; that an accounting be had of the fines and forfeitures coming into the hands of Lamar Camp, S. L. Graham, and O. L. Betts since said order of May 31, 1934; and that a mandamus absolute be denied.
The case was submitted on a written stipulation of facts as follows: "The petitioners, defendant, and intervenor hereby agree and stipulate that the above-stated proceeding may be heard and decided upon the facts admitted by the pleadings and the following statement of additional facts: Lamar Camp was the Solicitor of the City Court of Floyd County, Georgia, from January 1, 1929, to December 31, 1944. He died intestate in 1949, and the petitioner, Mrs. Ethelyn D. Camp, is the duly qualified and acting administratrix of his estate. S. L. Graham was the Clerk of the Superior Court of said County and the ex-officio Clerk of said City Court from January 1, 1916, to December 31, 1936. He died intestate in 1937, and the petitioner, Mrs. Eleanor Glover, is the duly qualified and acting administratrix of his estate. O. L. Betts was the Sheriff of said County and ex-officio Sheriff of said City Court from January 1, 1930, to June 6, 1936. He died testate on June 6, 1936; and Mrs. O. L. Betts was the duly qualified and acting executrix of his will, and sole legatee thereunder, and she transferred and assigned in writing for value to the petitioner, M. E. Horton, all of her rights, title, equity, and interest in and to any and all solvent and insolvent costs due said O. L. Betts as sheriff that accrued in said city court, including specifically the judgment, copy of which is attached, marked "Exhibit A." M. E. Horton succeeded O. L. Betts as sheriff, and served as such until December 31, 1948. On May 31, 1934, W. J. Nunnally was judge of said city court, and entered a judgment in favor of said officers and others, for costs in said court, copy of which is hereto attached, marked "Exhibit A," which judgment is recorded in Book 24, Page 375, of the minutes of said city court. All insolvent-costs orders of all officers of said city court for the period prior to the date of said judgment have been paid in full. Since May 31, 1934, the date of said order, copy of which is attached marked "Exhibit A," large sums of money, the exact amount of which cannot be determined without an accounting, have arisen from fines and forfeitures collected by said officers of said city court, and have been applied by them to the payment of their cost claims on said funds for bringing the same into court, but at no time after such date and during the terms of office of said Lamar Camp as solicitor of said city court were the amounts collected by them sufficient to pay more than approximately 60% of their cost claims during such period, and none of such funds collected were paid into the county treasury of said county. Since May 31, 1934, the date of said order, no order of said city court has been granted allowing or approving any cost claims of any of said officers of said court, and the distribution to them of all moneys arising since such date from such fines and forfeitures has been made without any order of said court, and none of such funds received by said officers of said court in such distribution has been credited by said officers of said court to the payment of said order and judgment in their favor dated May 31, 1934. Since May 31, 1934, said Lamar Camp, as said solicitor, S. L. Graham, as said clerk, and O. L. Betts, as sheriff, and M. E. Horton as sheriff, have filed in the office of the clerk of the superior court of said county no statement of the fees and other compensation received by each of them, the source from which received, the amount of insolvent costs earned, or the fees received in criminal cases; and said S. L. Graham, as said clerk, kept no book in which were registered the names of persons fined by said court, the time when, the offense for which they were fined, or the amount received and disbursed. There is now in the insolvent-cost fund of said city court the sum of $6453.80, collected and paid into the same recently by other and later officers of said court from funds arising from fines and forfeitures in said city court since the termination of the last term of office of said Lamar Camp. Demand has been made by the plaintiffs upon the defendant, C. O. Walden, as treasurer of said county, for the payment of said order and judgment dated May 31, 1934, but the same has been refused. Until the recent payment of said sum of $6453.80 into the insolvent-costs fund, there had been futile. There are entered on the minutes of the superior court, approving and directing the record of itemized bills of insolvent costs, totaling large sums of money, claimed by the officers of said superior court prior to May 31, 1934, and said claims are unpaid." Exhibit "A" attached to the stipulation sets out the complete copy of the order and judgment for insolvent costs dated May 31, 1934, which shows that it includes the names of officers and the amounts for balances due them as set out in the pleadings.
Thereupon the judge of the trial court entered a judgment for mandamus absolute, directing the said treasurer to disburse $6453.80 from insolvent costs, reciting that "by agreement of counsel for plaintiffs, the following in full: C. H. Wright, J. P. 4.55, S. A. Garrett, J. P. 1.95," and further directing that the balance remaining be paid pro rata on the basis of .5152% of their claims, which, reduced to actual amounts, was therein stated as follows: Mrs. Ethelyn Camp, Admnx. estate of Lamar Camp, $3278.55; Mrs. Wm. Glover, Admnx. of estate of S. L. Graham, $1523.93; M. E. Horton, assignee of Mrs. O. L. Betts, legatee of O. L. Betts, $1026.33; H. L. Lanham, Recorder, $382.85; G. S. Reese, J. P., $133.72; G. W. Bramlette, J. P., $41.85; Mrs. Edwina Collins, Ex'trx. W. B. Collins, $60.07. To said order and judgment the respondent treasurer and the intervening defendant, Floyd County, excepted, with various assignments of error, which will not be stated here since they are set out in the grounds discussed in the opinion.
1. The first two issues raised by the plaintiffs in error can be merged into a single question. Was it erroneous to grant a mandamus absolute directing the county treasurer to pay $6453.80 in his hands arising from insolvent costs in the City Court of Floyd County to former officers or their representatives claiming by virtue of a judgment of said court for insolvent costs dated May 31, 1934, which is admitted to be valid at the time of its issuance, as against the contention that it requires a second payment, or that it fails to credit or allow a set-off for moneys from fines and forfeitures subsequent to such former judgment, collected and retained by them without having the same allowed and approved under order of the court? In Walden v. Bale, 78 Ga. App. 226 (2, 3) ( 50 S.E.2d 844), it was held, in substance: that preceding officers of the City Court of Floyd County were entitled to be paid their insolvent costs, for which they had judgments in the nature of orders duly entered on the minutes of court, out of surplus funds derived from fines, forfeitures, and automobile condemnations in such city court after current officers were paid for bringing the funds into court; and that the law for the payment of insolvent costs in the superior court is applicable to the payment of insolvent costs in the City Court of Floyd County. Ga. L. 1882-83, P. 537, § 5; p. 540, § 18; Ga. L. 1920, p. 329, § 3 et seq. See also Terrell v. Jolly, 203 Ga. 821 ( 48 S.E.2d 517). The Code, § 27-2902, declares 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. No such officer shall be required to pay into the treasury, as aforesaid, any such moneys, until all the legal claims on such funds held and owned by said officer bringing the money into court, 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." Code § 27-2903 provides: "All moneys arising from such fines and forfeitures shall be, at each term of the court, distributed by the solicitor, under order of the court, to such persons and according to the priorities now prescribed by law; and on his failure to do so, he shall be subject to a rule at the instance of any party aggrieved." Code § 27-2904 declares: "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." Section 27-2905 provides: "Any officer having a claim against said fund for insolvent costs, or in cases where defendants have 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 by him paid out of any fines and forfeitures in the treasury received from the superior court." Code § 27-2906 reads: "Any officer of the county court, having jurisdiction for the trial of misdemeanors in any county, or any notary public or justice of the peace, having a like claim for costs, or before whom a preliminary investigation shall be had, and also constables having a like claim for costs, shall present the same to the judge of said court in the form prescribed in the preceding section; and when an order is approved and entered on the minutes of said county court, if any, and if not, on a book prepared and kept by said county court, notary public or justice of the peace, for that purpose, the same shall be a warrant on the county treasurer, to be paid out of any fines and forfeitures arising from proceedings in said county court in accordance with the laws providing for the distribution of fines and forfeitures in the superior court." And Section 27-2911 is as follows: "In cases where a bill of indictment is preferred and not found true by the grand jury, or where a defendant shall be acquitted by a jury, or where persons liable by law for the payment of costs shall be unable to pay the same, the officers severally entitled to such costs may present an account therefor to the judge of the court in which the prosecutions were pending, which being examined and allowed by him, he shall order to be paid in the manner prescribed by law, and such account and order shall be entered on the minutes of the courts." In addition to the above-quoted statutes, the plaintiffs in error cite and rely on Barber v. Robinson, 178 Ga. 721 ( 174 S.E. 344), wherein it was held that a mandamus would not lie to compel county commissioners to issue a warrant to a tax collector for fees claimed for official services in recording tax defaulters, and where the record made was never filed with the commissioners as required by law, although kept in the tax collector's office. The last-cited case affirmed a dismissal of a petition upon the sustaining of a general demurrer thereto.
In the present case, there was no general demurrer to the petition. The question arises here on exceptions to the order of the trial judge after the case had been submitted to him, by consent of the parties, to be determined without the intervention of a jury on the facts admitted by the pleadings and a written stipulation. Pertinent to the question is a paragraph of the stipulation as follows: "Since May 31, 1934, the date of said order, copy of which is attached marked `Exhibit A', large sums of money, the exact amount of which cannot be determined without an accounting, have arisen from fines and forfeitures collected by said officers of said city court, and have been applied by them to the payment of their cost claims on said funds for bringing the same into court, but at no time after such date and during the terms of office of said Lamar Camp as solicitor of said city court were the amounts collected by them sufficient to pay more than approximately 60% of their costs claims during such period, and none of such funds collected were paid into the county treasury of said county." It is obvious from the latter portion of the stipulation quoted above that none of the amounts due the officers claiming under the May 31, 1934, judgment for insolvent costs were paid or could have been paid in the later period, and therefore, the credits, set-offs, or accounting sought therefor would not avail the treasurer and Floyd County anything, in view of such stipulation, insofar as the actual moneys received by the officers are concerned. While, under the principles ruled in Walden v. Nichols, 201 Ga. 568 (4) ( 40 S.E.2d 644), Floyd County v. Nichols, 201 Ga. 575 (1) ( 40 S.E.2d 648), and Freeney v. Pape, 185 Ga. 1 (7) ( 194 S.E. 515), it may have been proper for the answer and intervention to set up germane credits or set-offs against the plaintiffs' claims, neither the pleadings nor the stipulation disclosed any actual facts sufficient to substantiate the defenses of payment, but on the other hand the stipulation of facts completely negatived the same. An agreed statement of facts entered into for the purpose of dispensing with proof on some or all of the issues is conclusive, as long as it remains in the case, so as to preclude introduction of contradictory evidence. United States Fidelity Guaranty Co. v. Clarke, 187 Ga. 774 (3) ( 2 S.E.2d 608), and cases cited; Code, § 38-114. The judgment for insolvent costs dated May 31, 1934, upon which the officers predicate their claims for payment, was duly allowed and approved under order of the court and recorded. The fact that some of the same officers during a later period collected from fines arising during the later period an amount not more than 60% of the costs due them for such later period, without making reports or having the same allowed and approved under the order of the court, would not in our opinion require the trial judge, passing upon questions of law and fact by consent in the mandamus, to find that the said May 31, 1934, order and judgment had been paid in whole or in part, for any reason assigned in the grounds discussed in this division of the opinion.
(a) In view of the provisions of the stipulation of facts and the principles ruled in division 1 hereinabove, the judgment for mandamus absolute did not unlawfully deny an accounting, and the assignment of error raising that question is without merit.
2. The ground which assigned error because the judgment for mandamus absolute failed to prorate funds in the hands of the treasurer to unpaid orders of all former officers was expressly abandoned in the briefs of the plaintiffs in error, "insofar as it related to the failure of the mandamus order to require any payment to J. P. Terry and H. O. Littlejohn, Justices of the Peace, who were among the officers in whose favor the insolvent-cost order dated May 31, 1934, was rendered." Although the stipulation of facts made some general reference to officers of the superior court having cost claims under orders that were allowed and recorded, there was no specific data in the stipulation or the pleadings showing any names, amounts, or dates, or that the claims of superior court officers were in any wise a charge against the particular sums from fines and forfeitures in the hands of the treasurer derived from said city court for the period in dispute. For this reason, this ground is without merit.
3. It is contended by the plaintiffs in error that the petitioners for mandamus in the court below failed to show that they have a clear legal right to have the said cost order and judgment of May 31, 1934, paid. For the reasons discussed and upon the principles ruled in division 1 of this opinion, this ground is not meritorious.
4. The judgment for mandamus absolute is not erroneous for any of the reasons assigned.
Judgment affirmed. All the Justices concur.