Stewart v. Sample

53 So. 182, 168 Ala. 270, 1910 Ala. LEXIS 549

• Court: Supreme Court of Alabama
• Decided: February 26, 1910
• Status: Published

Opinions

SIMPSON, J.

The suit was brought by the appellee against W. H. Drinkard. The basis of the various counts of the complaint was an order from C. G. Harris (appellant’s intestate), who was tax assessor, dated January 5, 1906, on said Drinkard, who was tax collector, requesting him to pay plaintiff $575, in which order it was stated “The intention is for you to pay this note cut of the first money collected of mine,” and said Drinkard wrote thereon, “Jan. 16, 1906, I agree to pay this as directed,” signing his name. The complaint alleges that said C. G. Harris was tax assessor of Morgan county, and had made the assessment of taxes for the year 1906, and was entitled to his commissions for said work, which were due him out of the first taxes collected in October, 1906; that said defendant Avas tax collector of said county, and was due Harris his commissions on or before November 1, 1906, to an amount far exceeding the amount of said order, also that the defendant has collected said money, etc. After the filing of the complaint, and before any plea had been filed, to wit, on October 12, 1907, said defendant filed his affidavit, under the statute, praying that the appellant, as administrator, be notified to come in and defend the action, and that defendant deposited the money ($620) in court. The appellant (substituted defendant) came in, and in writing filed his claim that the money deposited by the defendant belonged to the estate of his decedent, by reason of the fact that the order drawn by said decedent was an attempt to assign his fees, as tax assessor, then unearned; that this was known to the plaintiff and defendant, at the time of drawing the order, and the same is contrary to public policy and void. It also sets up the fact that the claim is usurious, in that it was for $500 in money borrowed, the additional $75 being usurious.

Section 6050 of the Code of 1907 is a short method for accomplishing the purposes of a bill of interpleader in equity, and applies only when the facts would authorize resort to a bill of interpleader in equity.—Nelson v. Goree, 34 Ala. 565; Johnson v. Maxey, 43 Ala. 521, 541; Jackson v. Jackson, 84 Ala. 343, 4 South. 174; Jackson v. Jackson, 91 Ala. 292, 10 South. 31; Crass v. M. & C. R., 96 Ala. 447, 11 South. 480.

The essential conditions of a bill of interpleader are: “(1) The same thing, debt or duty must be claimed by both or all the parties against whom the relief is demanded; (2) all adverse titles or claims must be dependent, or be derived from a common source; (3) the person asking relief — the plaintiff — must not have nor claim any interest in the subject-matter; (4) he must have incurred no independent liability to either of the claimants; that is, he must stand perfectly indifferent between them, in the position merely as a stakeholder.” — 5 Pomeroy’s Eq. Jur. (1 Eq. Remedies) § 43. In this case there can be no question that both parties are claiming the same debt or duty, to wit, the money, in the hands of Drinkard, which he had collected for Harris. The adverse claims, also, are dependent upon or derived from a common source, to wit, the obligation of Drinkard to pay this money to the party to whom it belongs.It is true the obligation to the plaintiff is by written contract, and that to the substituted defendant is implied, but they are both dependent upon the fact that Drinkard has collected the money of Harris, and is under contract, either expressed or implied, to pay it over. The person asking the relief, to wit, the defendant, Drinkard, has not incurred any independent liability. His acceptance did not bind him absolutely to pay the money, but only to pay it over, as the money of Harris, when collected; nor does he claim any interest in or right to the money, but is a mere stakeholder, ready to pay the money to whichever party is entitled to it, and has paid it into court. So this is a proper case for interpleader. This court has held that it is error for a court of equity, to require parties to interplead before the filing of answer, or a decree pro confesso (Crass v. M. & C. R., 96 Ala. 447, 454, 11 South. 480), but it will be noted that section 6050 departs from that rule, and, in this statutory proceeding, requires the affidavit to be made “at any time before issue joined.”

Evidently objection may be made to the granting of the order of interpleader at the time the motion is acted on. When the affidavit is filed, if it shows, upon its face, that it is not a case for interpleader, the plaintiff may present to the court any reasons which he may desire to present, to show to the court that it is not a proper case for -interpleader, and, if the court so holds, il should refuse then to grant the order, notifying the substituted defendant to come in and propound his claim, but, inasmuch as the statute does not require the defendant to set out the facts, on which he claims the right to interpleader, the plaintiff must have an opportunity to present the point that it is not a case for interpleader, when the facts are made known. Therefore this court properly held that the plaintiff could demur to the claim propounded by the substituted defendant.—Coleman v. Chambers, 127 Ala. 615, 620, 29 South. 58.

The appellant objects to the statment in the case just cited “that when the requisite affidavit has been made, accompanied with the proper prayer for order for the claimant to come in and defend, and the money is deposited in court, and the claimant voluntarily appears to defend, as wa.s the case here, the court was bound to make the order of substitution of the new,, and discharge of the old defendant.” He invokes the analogy of a bill for interpleader in équity, to wit, that the time to demur is before the order of interpleader is made. That might be highly proper in a proceeding in equity, wherein the complainant in his bill sets out a statement of the facts, on which the right to interpleader is claimed, so that the plaintiff then has the information upon which to base his demurrer, but, as before stated, the statute authorizes the affidavit to be made at any time before issue joined, and proceeds to state that “after such notice is given the court may make an order that such person be substituted as a party to the suit in place of the defendant,” etc. Whether “may” means “must,” or not, the court is certainly authorized by the terms of the •statute to make the order as soon as the notice is given. Under the practice, as above suggested, if it be a. case in which the original defendant has bound himself independently-, that fact is necessarily known to the plaintiff, and he can offer his objection to-the order before it is made. If that be not the case, then it becomes a mere matter between the plaintiff and the substituted defendant, the original defendant having confessed his liability to pa.y the money and deposited it in court, and it is proper that when the substituted defendant propounds his claim, the plaintiff may meet it, by demurrer or any other pleading.

We do not understand the case of Coleman v. Chambers to hold that, in every case the court must make the order as soon as the affidavit is filed, but only that, in that case, in which the plaintiff had not interposed any objection, the order must be made. If the demurrer is sustained on the ground that it is not a proper case for interpleader, then it necessarily results that the substituted defendant has no right to claim the funds, and the judgement would be for the plaintiff. If, on the other hand, it is shown to be a proper case for interpleader, and the substituted defendant shows that the funds belong to him, the judgment will be for the substituted defendant.

In the case of Nelson v. Goree’s Adm’r, 34 Ala. 565, 578, it is stated that the substituted defendant was brought in, Avithout objection on the part of the plaintiff, and the court says: “Notwithstanding the order of substitution in this case was irregular, a.nri should not have been granted, the appellee (who was the plaintiff), by failing to object to the action of the court, has forfeited all right to claim any advantage in consequence of the order. The cases cited above show that the proper mode and time for raising the question of the right to substitute a neAV defendant, is when the motion is acted on. It is not a question of what defense the substituted defendant can make, after he is, by the order of the court, admitted into the place of the original defendant; but a question of right in the original defendant to have him substituted. When he becomes the defendant, he defends, not on the title of the original defendant, but on his own title.”

In that case, and in the New York case therein followed, the ground upon which it Avas contended that the substitution should not have been made was that the original defendants were personally bound to the plaintiff, to account for the proceeds of cotton which had been shipped to them by the plaintiff, and the decision of the court is in accordance Avith the practice above suggested, to wit, that the plaintiff should have made that objection before the order of substitution Avas made.

In the case of Johnson v. Maxey, for Use, etc., 43 Ala. 521, the suit was brought by Maxey against the railroad company on an award as to damages to land, the railroad company deposited the money in court and made affidavit that Johnson claimed the money, Johnson appeared, and on his motion was made a party defendant. The court held that the affidavit of the railroad company, with the deposit of the money, was a conclusive admission of said company of all the material allegations of the complainant, and that when said Johnson came into court, the only matter which could be litigated was Avhether the money brought into court belonged to him or to the plaintiff (pages 538, 539), that he could not deny the liability of the railroad company to pay the award. The court also held that it was the duty of the substituted defendant to propound his claim with such ’ certainty and fullness that the plaintiff might plead to or answer it, and, inasmuch as said substituted defendant did not so propound his claim, but undertook to demur to the original complaint, which he could not do, the court properly overruled it, and though the substituted defendant improperly pleaded the general issue to the original complaint and the court improperly permitted the cause to be tried on that issue, and a verdict was rendered against the substituted defendant, he could uot complain, because he had not tendered a proper issue. The court was of the opinion that it was not a proper case for interpleader, that the verdict did not decide whether the substituted defendant was entitled to the money, because he did not, by proper pleading, present that issue. Nevertheless the facts showed that the money belonged to the plaintiff, as the award had so decided, and if the substituted defendant was the owner of the land, his remedy would have been against the railroad company, and not by claiming the money which had been awarded to another, and therefore the substituted defendant had nothing to complain of.

It seems to this court that the practice herein suggested is in harmony with our previous decisions, and that it protects the interests of all parties. In accordance with what has been said, we hold that it was proper to allow the plaintiff to demur to the claim stated •in writing by the substituted defendant.

We do not understand this demurrer as being to the cause of action in the original complaint, but it goes merely to the right of the substituted defendant, to be heard as a claimant to the money which is confessed to be due by the original defendant. From what has been said it results that said grounds of demurrer numbered 1 to 21, inclusive, to the claim of the substituted defendant, were properly overruled. As to those causes which attempt to raise the point that Drinkard was independently liable, if there was any force in them, those matters should have been presented before the order of substitution was made, and said causes could have been properly stricken.

Without attempting the tedious task of following the intricate maze of demurrers and other pleadings, the only issues remaining, according to the pleadings and charges, and argued by the counsel are, first, whether the assignment by Harris of the money arising from his-fees were contrary to public policy and void, thus rendering his estate entitled to the money in the hands of Drinkard and paid into court, and, second, as to the-question of usury. The assignment, by a public officer,, of his fees or compensation, to be earned in the future,, is declared to be contrary to public policy and void. While this principle has been doubted and criticised by some authorities, the reasoning of it is that by sanctioning such contracts the efficiency of the officer, in the discharge of his duties, might be impaired, but it is equally recognized by the authorities, and the ratio legis shows the correctness of the principle, that it is not contrary to public policy for a public officer to assign his fees or compensation after he has earned the same.—Scloss v. Hewlett, 81 Ala. 266, 270, 1 South. 263; 4 Cyc. 20; Greenwood on Public Policy, p. 353. The reason given is that by being permitted to assign his salary' fees, or compensation (for the authorities state they all stand on the same basis), the efficiency of the officer, in the discharge of his duties, might be impaired; but after he has performed the work for which said compensation is allowed, such reason does not apply, and the assignment is valid.

It is insisted by the appellant that this principle cannot aid the appellee in this case, because there were other duties yet to be performed by the assessor, after he had assessed the taxes, and that the amount of his compensation, for the county assessment, could not be fixed until the levy was made by the county commissioners for the current year. There seems to be some confusion in the statutes on this subject. Section 2120' of the Code of 1907 (section 3948, Code 1896), providing how the assessment shall be made requires the assessor to place on the tax lists when he malíes the assessment (commencing in October) not only tbe description and value of the property but also “tbe amount of state, county and special taxes”; and section 2121 (section 3949, Code 1896) requires bim to deliver these lists with tbe book of assessments to tbe court of county commissioners on or before the first Monday in June, which would seem to indicate that tbe county tax bad been previously levied.

Section 2122 (section 3950, Code 1896) requires bim to make in a book á condensed statement of all assessments made, showing tbe description and value of lands assessed, with tbe value and amount of state taxes. This book is to be delivered to tbe probate judge on or before the first Monday in May, section 2123.

Section 2126 (section 3956, Code 1896) provides that, after tbe county taxes have been levied, tbe assessor shall compute tbe amount thereof owing by each taxpayer and enter tbe same on' tbe book of assessment.

Section 2097, Code 1907 (section 3925, Code 1896), provides that “The tax assessor shall be entitled to receive from tbe tax collector, out of tbe first moneys collected for tbe state * * * tbe following commission on tbe state taxes; * * * He shall also be entitled to receive, from tbe tax collector, tbe same rate of commissions on the amount of county taxes * * * regularly assessed, carried up or extended on the assessment book,” etc.

Tbe evident intention of tbe last-cited section is that, as to state taxes, when the assessor has made tbe assessment nothing remains for bim to do, and he has earned bis commissions. The same is true as to any fees which be has earned.

Though section 2122, Code 1907 (section 3950, Code 3896), requires tbe. assessor to make a condensed statement of all taxes assessed during tbe year, etc., tbe next section requires said book to be delivered to the probate judge on or before the first Monday in May, yet this is simply one of the general official duties of the assessor, and his right to commissions is not made dependent upon this, as it is in relation to county taxes, by section 2097, above cited. If he should fail to discharge his duty in that respect, there are other remedies, besides withholding his commissions earned for the assessment of state taxes.

As to county taxes, the question is whether, at that time, he had done all that his duties require to earn his commissions. The strongest case in that direction, which we have found, is the early English case of Alexander v. The Duke of Wellington (2 Rus. & Mylne, 35), 6 Eng. Ch. Rep. 383, which involved the right to assign a claim for prize money for vessels captured. The vessels had been captured, but the constitutional legal authority had not prepared a scheme for thé distribution thereof, and the court held that the assignment was valid, the evident reasoning being that the claimant had done all that he was required to do to earn the prize money, and the mere fact that the amount to be paid him was still to be ascertained, did not render it any less true that he had earned the compensation.

The evidence in this case shows that, up to January 5, 1906, the amount due the assessor for fees earned was $7.50, the amount of commissions due for state taxes was $418.37, and the amount of commissions on county taxes, assessed to that date, was $354.13. From the section cited it will be seen that his commissions on county taxes were not earned until he had not only made the assessments, but had also carried them up and extended them on the assessment book. Consequently, his commissions on the county taxes had not been earned at the time the order was given, and, as to that ¿mount, the order is invalid.

It results that there was no error in refusing to give the general charge in favor of the substituted defendant, while the general charge in favor of the plaintiff would be correct, with an explanatory charge as to the amount which the plaintiff was entitled to recover.

The fifth claim set up by the substituted defendant is that Avhen C. G. Harris, the deceased tax assessor, gave to appellee the order in question for $575, the consideration for said order was $500 loaned by appellee to said Harris, and that the $75 was usurious interest,, and it is alleged that said appellee is not entitled to said $75. It is true that, in this proceeding, the merits of the claim against Drinkard cannot be inquired into, for he has confessed that he owes the money, but the question to be decided is, to whom the money paid into court by Drinkard belongs. The money belonged primarily to Harris, and so much of it as is legally subject to the order belongs to the appellee, while any part of said money that is not subject to said order belongs to the estate of Harris. If a part of it is not subject to that order, by reason of the order’s being usurious, to that extent the amount belongs to the estate of Harris, and should be deducted from the amount apparently due on the order.

In the case of Holt v. Thurman et al. 111 Ky. 84, 63 S. W. 280, 98 Am. St. Rep. 399, which the appellee considers directly in point to the effect that the transaction in this case was a sale, and that usury cannot be considered, the facts were that the party had actually sold his prospective salary, at a discount of 10 per cent., and while the court does remark that it was a sale and not a loan, the question of usury was not in it, yet the claim was disallowed.

In the present case there was no sale, but simply an order, which was accepted, and which is sued, on in this case. Consequently the court erred in sustaining the demurrer to the fifth count of the claim of the substituted defendant.

The judgment of the court is reversed and the cause remanded.

Reversed and remanded.

Dowdell, C. J., and Anderson, McClellan, May-field, Sayre, and Evans, JJ., concur.