Walling v. Morgan County

DOWDELL, J. This is a suit brought by the county of Morgan against the defendant W. J. Walling and the sureties on his official bond as tax collector of said county for a failure by said Walling as such tax collector to collect and account for the county taxes lev [339] ied and assessed for said county for the year 1893'. The assignments of breaches'bf his said official bond asset out in the, complaint cover the duties both of collecting the taxes as assessed, and- of paying over and accounting for the same when collected. The pleas of the defendant were the general issue and payment, and on issue joined on these pleas the cause-was tried. As appears from the record the real contention in the case grows out of a dispute as to the true-amount accounted, for and paid over by the collector to-the county treasurer. It ivas competent for the plaintiff under the issues to show the amount of county taxes; levied and assessed for the year 1893, with which the-defendant as such tax collector ivas charged with the-duty of collecting and accounting for, and to sIioav this the book of assessment made out and certified to in accordance Avith the prolusions of section 520 of the-Code of 1886, aa:Mc1i Avas clone in this case, was admissible in (widence. This section (520) also provides-that the hook of assessments shall contain -and show a footing up of the amounts of the taxes at the bottom-of each page, and winch must be carried from page to-page, and in conclusion sIioav the total or aggregate amount of the taxes so assessed and levied. This having been done, the presumption of the -correctness of such total or aggregate as shown on the book of assessments obtains until the contrary is made to appear by the evidence, and in the absence of any evidence tending to impeach the correctness of such total or -aggregate, it is conclusive against the defendants. The certificate on the book of assessments made by the presiding officer of the board of county commissioners is the Avnrrant to the tax collector of the county to proceed to collect the taxes, as shown in said book of assessments, in the manner directed by laAV. And tiie tax collector being by law charged -with the-duty of collecting said taxes he is properly debited; in. the statement of.his account Avith the aggregate amount as footed up and shown by said book of assessment, in the absence of any evidence iriipea-cliing the correctness of such aggregate.—Timberlake v. Brewer, 59 Ala. 108; Jackson Co. v. Gullatt, 84 Ala. 249; Code of 1886, [340] § 520. As against said debit, lie is entitled to be credited with, all taxes collected and paid over by him to the proper officer authorized to receive the same, also for commissions clue him as tax collector under the law, and to commissions only on collections actually made, and for commissions due to the assessor, and for amounts allowed by the court of county commissioners on errors and insolvencies, and on sales of land bid in by the State. As to all items or amounts received from the tax collector as such, by the county treasurer and by the latter entered in a book kept by him for that purpose as directed by the statute, the book of the treasurer was competent and admissible in evidence, and while presumptively correct, is not conclusive against the tax collector as showing all payments made by him to the treasurer. But we do not understand the appellants as objecting to the introduction of the treasurer’s book as to the items of credit given the tax collector, but to the debit item. The debit item was shown to be the exact amount of taxes with which the collector was charged with the duty of collecting, in the book furnished him under the law, and the amount was in fact taken by the treasurer from his, the collector’s book, and if there was any error in the admission of the treasurer’s book as to this debit item, it was harmless. So far as concerned the defendants under the issues in this case, it was wholly immaterial as to them what disposition or application the treasurer made of the funds after receipt by him of the same from the tax collector. The tax collector is entitled to credit and is discharged of all liability the moment he makes payment to the treasurer, who is under the law authorized to receive, of the county taxes so collected, and it can be of no consequence to the tax collector in a suit by the county against him for failing to pay over taxes collected by him, to what particular fund the books of the treasurer may show money paid in by the collector is credited, whether to the general or special fund of the county, or how paid out by the treasurer. This might be of importance as between the countv and [341] the treasurer, but it can have no hearing on the issues here between the tax collector and the county. As stated above the real contention in this case grows out of a dispute between the tax collector and the county treasurer as 'to the amounts paid hv the one and received by the other. And much of this dispute arises out of the giving of receipts by the treasurer! Tt being contended by the collector that the treasurer has failed to credit him with certain amounts represented by certain receipts, while on the other hand it is contended by the treasurer that the receipts for which the collector claims to have received no credit,, are covered by other receipts subsequently given by him to the collector embracing the amounts for which the former receipts are given. There can he no doubt of the legal proposition, that while a receipt for money paid is prima facie evidence of the payment, yet it is not conclusive, hut is open to explanation by parol evidence; and this rule applies without any distinction as well to receipts given in the course of official duties as to receipts in private transactions between individuals. As to the money collected by Echols, deputy tax collector, the record shows that Scruggs had instructed Epperson to collect it for him; this Epperson did, not as treasurer, although he may have signed the receipts as such, but he veas simply acting as the agent for Scruggs and as such agent, paid it over to Scruggs, who in turn paid it over to the defendant Walling. Under the facts upon this point, the money was received by Epperson, not as the county treasurer, but as the agent of Scruggs. Moreover, the tax collector having received' this identical money to enable him to make a monthly settlement with the county, he cannot claim receipt for it on the payment of it by Echols, for this would he to credit him twice for the one amount or one payment.. The declaration of Walling to the witness Peck, was made by Walling while he was tax collector, in the-discharge of the duties of such office, and was properly admitted in evidence to he considered by the jury for what is was worth as being in the nature of an admission, that he was behind with the county; and if taken [342] as an admission of his shortage as collector it was as binding upon the sureties upon his official bond as upon him. (While the burden of proof under the genmal issue was on the plaintiff to establish some one of the breaches of defendants’ bond as alleged in the complaint, yet when this burden has been discharged, upon the plea of payment the burden of proof rested upon the defendants.) The statement taken from the books of the First National Bank, was, in the absence of evidence of its correctness, inadmissible when objected to by the defendants. The witness Littlejohn, cashier of the bank, testified that the statement of the account offered in ■evidence (which purported to be an account kept by the bank with Walling as tax collector), was taken by him from the books of the bank; that he did not keep the books, nor receive deposits nor pay out money. All that he knew was that the account as shown by the statement offered in evidence appeared upon the books of the bank and he presumed it was correct. This was insufficient, as showing, or tending to show, the correctness of . the account, as kept on the books of the bank, and without this said account as evidence was not admissible.—Hart v. Kendall, 82 Ala. 144; McDonald v. Carnes, 90 Ala. 147; Todd v. McCravery, 77 Ala. 472. The written instructions to the jury given at the request of the plaintiff are in harmony with the law as hereinabove stated, and the instructions requested by the defendants and refused by the court are opposed to the views we have expressed. There is no error in the ■rulings of the court on these written charges, except Charge numbered 8, which is faulty in that it exacts too high a degree of proof; a reasonable satisfaction being what the law requires. The portions of the oral charge excepted to, when taken in connection with the rest of the charge are free from error. For the error pointed out, the judgment must be reversed and the cause remanded.