Korndoffer v. Fail

Counsel

Sullivan Sullivan and Dale Koonce, all of Hattiesburg, for appellants. This proceeding is under section 2108 of the Code of 1930, providing that, "when any justice of the peace shall have collected in his official capacity any money, fines or penalties and shall fail to pay or account for the same to the person, or official, entitled to receive the same, he shall be liable to be proceeded against on his official bond in a summary way," etc. It is seen, therefore, that, to warrant such proceeding, the justice of the peace must have acted in his official capacity in making the receipt; and it is seen also that such proceeding is for the recovery of "money, fines or penalties" so received by him. There are only two instances under the statutes in which a justice of the peace is authorized to receive money, fines or penalties. Section 657 of the Code of 1930 provides that a plaintiff or complainant may give security for cost by depositing in cash with the clerk of the court the amount required; and section 658 provides that such provision shall apply to justices of the peace and courts held by them. Section 659 provides that, "if cost be adjudged against the party making the deposit, the clerk or justice shall pay the cost out of the deposit and the residue to the party entitled thereto; and, if the party making the deposit be not liable for cost, the whole of the deposit shall be returned to him;" and section 660 provides that "the clerk or the justice of the peace shall be liable on his official bond to all persons having any claim to or interest in any money so deposited for cost." Section 2107 of the Code of 1930 provides that "it shall be the duty of every justice of the peace to receive and account for all fines and penalties imposed by him," etc. The only statutes authorizing or requiring justices of the peace as such to collect money, fines or penalties are these statutes; or, if there is another such statute, our search has failed to reveal it to us. The policy of the law seems to be that under no circumstances whatsoever shall a justice of the peace be authorized to receive or handle money accruing under civil process. Sections 632, 634, 2079, 2080, 2081, Code of 1930. The statutes of Mississippi governing the payment of money by garnishees are equally specific and express in withholding from the justices of the peace authority to receive money or property bound in the hands of garnishees under process issued from their courts. Sections 1844, 1845, 1849, 1858, Code of 1930. It will be noted that said last four designated statutes provide with certainty that the officer serving the writ of garnishment, not the justice of the peace, shall receive from the garnishee the money or property owing or held by the garnishee to or for the judgment debtor. The only statutes with reference to garnishee's making delivery to one not specifically designated as the officer serving the writ of garnishment are sections 1852 and 1853, Code of 1930. Sections 1852 and 1853 were not authority in the instant case for the justice to receive the money from the railroad company for the further reason that said statutes have application only when another than the judgment debtor claims the money held by garnishee; while, in the instant case, another than the judgment debtor did not claim the money held by the railroad company; the railroad company answered and stated that the judgment debtor himself claimed it. A justice of the peace is not required, or even authorized, by any statute under any circumstances to receive money or other thing under any civil process; and wherever a person against whom such process is issued by a justice court pays money thereunder to the justice of the peace, the justice receives it, not as an official, or, as it is called, in his official capacity, but as the agent of the person so paying it to him. An official receives money in his official capacity, and is liable on his official bond therefor, only when he receives it by direction, or under authority, of law. Lewis v. Johnson, Walker's Reports, page 260; Matthews v. Montgomery, 25 Miss. 150 ; U.S.F. G. Co. v. Young, 127 Miss. 725 , 90 So. 448. Since he is not authorized by law to receive money arising under any civil process but, rather, is almost expressly forbidden by statute to so receive money, he cannot be proceeded against on his official bond for so receiving it. The amended summary motion should have been disallowed and dismissed on the hearing on answer and proof; and we respectfully submit that the judgment of the circuit court should be reversed and that judgment should be rendered by this court in favor of appellants. Excello Feed Milling Co. v. Warren County, 159 Miss. 167 , 131 So. 270 . Currie Currie, of Hattiesburg, for appellee. Appellant Korndoffer admits the collection of the money but contends that he received the same in a private and personal capacity and not in his official capacity or by virtue or color of his office. This is the only question involved in the appeal. This position is taken by counsel for appellant on the theory that the justice of the peace was not empowered by law to receive the money in question from the garnishee; that the justice was not empowered by any statute to collect or receive the money or by any other theory of law, but on the contrary that the constable was the only person authorized by law to receive the money. We submit that the justice of the peace collected the money in question in his official capacity; that he was empowered so to do by the inherent power vested in the court and by the statutes of the state. The justice court is a constitutional court and a court of record and has the inherent power to do all things reasonably necessary for the administration of justice within the scope of its jurisdiction. 7 R.C.L. pages 1033 and 1034, pars. 62 and 63; Tooley v. Gridley, 3 S. M. 493, 41 Am. Dec. 628; Woodruff v. Chapin, 57 Am. Dec. 416; Price v. Farrar, 5 Ill. App. 536 ; Hale v. Commonwealth, 8 Pa. St. 415; 28 C.J., par. 455. Aside from the inherent power of the court to receive the money in question, and its duty to direct its proper disbursement, the statutes of the State of Mississippi vested authority in the court, and made it the court's duty to receive said money and to properly account for same. Section 1852, Code of 1930. We cite the case of Herrin v. Warren, 61 Miss. 509 , and submit that it covers this case and is conclusive upon the garanishee's right to pay the money due the judgment debtor into court and be discharged from further liability and of the fact that the justice received and collected said money in his official capacity; and of the inherent power of the court to receive and control said money, as well as the power granted by statute to the justice to so receive and handle said money. Appellee's money is being illegally withheld by the justice, and the justice and the sureties on his bond are liable. The evidence is overwhelming. The record establishes beyond disputation that the justice collected the money in his "official capacity." The term "official capacity" in the statute is synonymous with the term "under color of and by virtue of his office." Section 2108, Code of 1930; State v. McDaniel, 78 Miss. 1 , 27 So. 994, 84 A.S.R. 618; Lizana v. State, 69 So. 292, 109 Miss. 464 ; U.S.F. G. Co. v. Adams County, 63 So. 192. What the magistrate does colore officii his sureties are liable. State v. McDaniel, 78 Miss. 4 , 27 So. 994. The court committed no error in overruling the demurrer to the motion and the motion to strike it. Lewis v. Johnson, Walker Rep. 260; U.S.F. G. Co. v. Young, 90 So. 448; Matthews v. Montgomery, 25 Miss. 150 .