Marion County v. Brown

B. F. SAFFOLD, J. This is a summary proceeding, by the county of Marion, against the sureties of the tax collector of that county, for his default. The motion is made under the provisions of § 920 of the Revised Code, and the notice is issued to, and executed on, four of them. The tax collector himself, and one of the sureties, are not included. The defendants demurred to the notice, because of the omission of these parties. The circuit court sustained the demurrer. Section 920 of the Revised Code, directs that judgment may be recovered against a tax collector, or against him and his sureties, or any or either of them, having ten days’ notice, by motion in the circuit court, in the name of the county for which the money is collected .by him and not paid over within the time prescribed by law, or on demand of the treasurer, when no time is • fixed. The evident construction of this section is, that the proceeding may be prosecuted against any one or more of the obligors to the official bond. The decision in Ware v. Greene, 37 Ala. 494, is based on the terms of section 3026, Revised Code, that the motion must be made against the person in default, and his sureties upon his official bond. It is there held, that the proceeding is summary and highly penal, and must be pursued in strict conformity to the law authorizing it. There is this marked difference between the law under which the proceedings in the case of Ware v. Greene were conducted, and section 920, under which this case was commenced. In the first, the proceeding is to be by the comptroller for the use of the State, against the tax collector and his sureties. — Revised Code, §§ 3026, 3060. In the other, the notice is to be given, in the name of the county, to, and the motion made against, the tax collector and his sureties, or either of them. ■ The notice given was sufficient, and the circuit court erred in sustaining the demurrer. The judgment is reversed, and the cause remanded. Peters, J., not sitting, having been of counsel.