Arthur v. Commissioners of Gordon County

Jackson, Chief Justice. This record consists of a huge mass of disconnected and ill-assorted papers, with pages omitted as appears from the paging. This jnass, unwieldy in itself, is sub-divided into ten or more parts, each parcel to itself as a separate transcript, and heterogeneous parcels of matter, wholly distinct from each other, so far as the record discloses, are grouped in the same parcel. It is all in writing, none of it printed, and the writing, a good deal of it, hard to decipher. Reference to exceptions and amendments is sometimes made by numbers, and sometimes by numbers with letters prefixed or annexed to them ; and there is no discoverable means from the bill of exceptions or any of the ten parts of the transcript, of ascertaining to what these lettered figures refer. Nor does the abstract of the counsel for plaintiff in error, or the brief, throw such light upon this confusion as to bring order out of its chaos. It is very difficult, therefore, to review the case intelligently, or to reach a conclusion upon it entirely satisfactory. But as it is the duty of the plaintiff in error to make error appear, it remains for this court to rule such questions of law as are made so that we can pass upon them ; and where none such are made so as to show error in the rulings below, to take it for granted that none exist. The county commissioners of Gordon county issued executions against Arthur and his sureties as a defaulter in handling the county funds as treasurer during two terms of office. To these executions affidavits of illegality were filed by him ; an account was taken by an auditor, who' found large sums due by the treasurer for both terms of office ; to his report exceptions were filed by Arthur, and on these exceptions a verdict was rendered sustaining the report in the main ; a new trial was denied by Judge Underwood, Judge McCutchen having presided on the trial — 223 — before the jury; and on the judgment of Judge Underwood refusing the new trial, and on his order and decision directing the executions to proceed for certain sums of principal, with interest at seven per centum, error is assigned here. 1. A motion was made to quash the executions on the trial, and this is one ground of the motion for new trial. It is based on the ground that the county commissioners had no power to order these ft. fas to be issued. They take the place of the ordinary, and he stands in the shoes of the old inferior court, and we think it clear that the power to issue the executions devolved upon these officers bylaw. Code,§§563, 911 ; Cobb’s Digest, p. 212. We see nothing in thé constitutional point about trial by jury before the executions issue. He has had that trial after they were issued, just as fully as it could have been had before, and the right is in no substantial sense impaired. Ever since 1825 it has devolved upon the justices of the inferior court, and then on the ordinary, and more recently on the county commissioners, to issue these executions summarily, and then the .remedy, as in this case, may be had by trial by jury before the courts. Code, §5127 ; 5 Ga., 185. Under this power provided in the constitution of 1868, codified as last cited, this board was created for Gordon county, and this power transmitted to them. The executions are not issued by the clerk but by the commissioners, and signed by the clerk on their order. So far as we can see, they comply substantially with law. 9 Ga., 185 ; 11 Ib., 207; Cons. 1868, Art. 11., sec. 7 ; Code, §§337, 506; Acts 1874, p. 344. 2. There was no error in striking the exceptions complained of as too general. 47 Ga., 434. In matters of account, running through a series of years, the exceptions to the auditor’s report thereon should not deal in general terms, but in specifications of issuable points. In all pleadings, issues should be specific, in exceptions to the report of an auditor, especially so ; otherwise the work of — 224 — the accountant appointed by the court will amount to no practical effect, but the entire case had as well be tried de novo by the jury. It is only the exceptions as to matters of fact which are tried by the jury, and they must be specific and distinctly issuable. But the case cited supra from the 47th Ga., rules the point, and it is useless to argue it. This covers the ruling of the court in striking the 2d, 5th, 9th, 10th, nth, 12th, 14th, 15th, and 16th exceptions, so far as we are able to apply the rule of law to a record so confused as this is, for there is nowhere in it a complete statement, of the exceptions originally made by defendant, but those allowed to stand seem embodied together, and those stricken are in another place, and they differ in the transcript as a recital and in the order of the judge striking them. For instance, the judge according to his judgment, struck the fifth, which does not appear elsewhere as stricken, and which cannot be found .in the record at all. It is, however, doubtless as general as those stricken, and we class it as coming under this rule of law. 3. The discretion of the court in rejecting the two new grounds, numbered 17 and 18, offered on the trial with no satisfactory reason given for delay, will not be controlled by this court, ample time having been given for filing all, and the cause having been in court for years. 4. The auditor’s report is prima facie evidence, and the burden was on the exceptor to show error in it, and to make good his exceptions. When it was ordered filed, and leave and time were given to except thereto, it became such evidence. 47 Ga., 414, and cases passim. Code, §§3138, 3097. 5. The burden being thus on the plaintiff in error, there was no error in ruling that he lost the conclusion when the county introduced no testimony, but only cross-examined a witness, which cross-examination had been temporarily suspended by the court in order to investigate a legal point. When the witness again took the — 225 — stand, he was still the witness of the exceptor, and his continued examination by the other side was a continuance of the cross-examination. He never was a witness of the county, introduced by it, so as to lose the right to conclude the argument. 6. We are unable to see how what the county treasurer said in his own behalf was admissible as testimony, simply because it was said by him when he turned over to appointees of the county commissioners his books for examination by them. They form no such part of the res gestee as to be admissible on that ground, and surely are not on any other, but to admit them would be hearsay, and that hearsay by the party and in his own favor. 7. The court sustained the exception that twenty per cent, interest did not run against the treasurer, but entered judgment for seven per cent. Surely the plaintiff in error cannot except to this ruling. It is matter of law and it is for the court to rule on it. 47 Ga., 414. 8. As we understand them, these are the points of law ruled by the court against the plaintiff in error. They are those only on which his counsel insist here by brief and argument. The remaining one is the' usual, stereotyped ground,, that the finding of the jury is agains.t the evidence. That evidence has been before the auditor, who gave it a thorough investigation after careful deliberation. It has been thoroughly sifted by a jury before a. learned and able judge, and re-examined by another judge equally competent to review the rulings of the presiding judge and the finding of the jury. It is more matter of calculation than anything else, and from such an examination of the figures as our limited time will allow us to make, we see no errors in it. Certainly none have been' pointed out, and proved by the very able and experienced counsel who represented the plaintiff in error here. When such a complicated account by a public officer dealing with the money of the people has been thus sifted, and stated by the repeated investigations of competent — 226 — tribunals, it must be a strong case, and the evidence of error clearly made to appear, before this court will interfere, and so it has been solemnly ruled. 64 Ga., 711. A public officer in custody of the funds of the public should be able at any time to exhibit an account of every cent of which he is the custodian, so that an accountant would have an easy task to see from his books the credits and debits and strike a balance between them, and a jury of his county could easily exonerate him from the charge of waste or corruption, inaccuracy or want of skill in the duties he assumed. If this officer had so managed the money of this county, by simply doing what the law required of' him, there would have been no trouble to himself or his sureties. As it is, he must suffer for his own default, and his sureties must make good their bond to save the county harmless. 9. In conclusion we desire to say, in the hope that our views may reach at least the lawyers of the general assembly, that the present case is a strong illustration of the importance, not to say the necessity, of legisla-tion in respect to the mode of bringing transcripts of the record of causes to this court. Often, quite often, it is-so hard to decipher what is written, to get at the real merits of cases, from the incompetency of clerks of the superior courts, and the inattention of counsel to the record when transmitted here before their cases are argued, that this court has to move much in the dark. The law-making power of the state has been pleased to say to the effect that no rule of this court shall operate to dismiss a case, no matter how unintelligently the grounds of error are exhibited, how badly the facts of the case are written, how inaccurate the paging, how obscure the case, so that the labors of this court, always onerous', are increased one hundred fold. Something should be done to remove the evil. The record should be clear and intelligible — either printed, which would be far preferable, or written in a plain, readable hand, and some — 227 — power should be given the court to control its proceedings and to enforce the necessary rules of practice it may adopt. Required by the constitution to decide cases speedily, the remedy of sending the record .back to be perfected is wholly inadequate, and the court is powerless, under the fetters which bind it, to guard against the evil alluded to, and to enforce the rules it has adopted. We venture to say that there is not in the civilized world an appellate court required to investigate and adjudge cases in the last resort with such blurred and blotted, such confused and unintelligible, such interlined and ill-paged records, such hopelessly obscure and inexplicable transcripts, divided into different parts, and written in all manner of' hand-writing — some with half a page written and the rest blank, some with the whole of one page blank and two lines on the next written, and such abstracts of pleadings and evidence, as those which meet the eyes of this court at every term. The honor of the state, the pride every man should have in the administration of justice in it, in rhe last resort, revolt at this rickety condition of things; and it is hoped that the legislature, if it shall continue to deny the power to the court to remedy the evil, will find some available mode of doing so itself. Judgment affirmed.