Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1872-09-12
supreme Court-An Imporsans opin-


supreme Court-An Important Opin-
e. ion.
- The opinion below VIII be Of as much
general interest to our readers as any de.
livered by the Supreme Court In this State.
| Its importance is at once seen. The follow
ing case was before the Supreme Court at
its, recent Jackson term In the Western
Division in this State. @
JUDGMENTS AGAINST COLLECTORS OF
REvENUE-MoTIoNs, NOTICE, CIR
i .TAINTY.
I A notice of motion against Revenue
Collector need not specify the day Of The
term onwhich the motion win De entered.
CoMPTRoLLERs.
The Comptroller's statement Of the
amount of revenue due from a Revenue
Collector to the State fixes conciusively the
amount for which the court shall render
| Judgment, but the judgment rendered is still
subject to credits to be allowed by the
Comptroller.
COMPTROLLER, DUTIES OF THE
The Comptroller Of the Treasury is now
constitutional officer Of the Executive
| Department, etc. N-Ai 7
State OF Tennessee vs.. JOS Allison ct ais. opin-
Ion. --.-...- --.. 1900.
On April 20, 1872, the Attorney
General for the Thirteenth Judicial
District issued to the Sheriff of Mad
ison county a notice to Joseph Allison
| and others that he would, at the May term,
1872, of the Circuit Court for Madison
county, make motion against them as Sc
curities on the official bond Of w. G. Rob
| inson, deceased, as collector OF taxes for
Madison county for 1866 and 1857, for the
sum of s., 039, the amount Of revenue due
the State by said Robinson as tax collector
for the year 1867, as per statement Of the
COMPTROLLER Of the State.
This notice was served on the defendants
| April n, 1872, which was more than five
days before the commencement of the May
term Of the Circuit Court, which began on
the first Monday thereof.
A copy Of the official bond of W. G. Rob-
inson, rs Tax Collector for 1865 and 1857,
| certified by the Comptroller, and also GER
| tilted statement of the account Of W. G.
Robinson as Tax Collector for 1866 and
| 1867, showing q balance against him for the
year 1867 of $5039.12 were filed in the
clerks Office, and. SO marked by him the
| 7th Of May, 1872. -s'i Is scusL
May p, 1872, the attorney general fer
the district entered upon the minutes ofths
court, the motion Of which he had given
notice.. This motion sets out In detail
every recital requisite to constitute the
basis Of regular Judgment, referring speci-
| fically to the certified copies Of the official
bond OF the tax collector and of the comp
| troller's statement of his account as being
on file in the cause. e.li'
May 81, 1872, The counsel for defendants
! appeared and moved the court to discharge
the motion made by the attorney general
for the district for want Of proper legal and
sufficient notice, but protesting that they
only appeared for that special purpose.
May 81, 1872, the Circuit Court Judge
sustained the motion Of the defendants
counsel and dismissed the motion Of the
Attorney General.
From this judgment the State appeals.
The ground en- which the court dismiss
ed the motion Of the Attorney General
seems to have been, that the notice was in
sufficient inasmuch as it did not designate
day of the term on which the motion
would be made. Il was decided long ago
(and the decision has ever since been fol-
lowed) that when notice Is given in q sum-
mary proceeding that a motion will be
made on specified day, it must be made
on that day or the proceeding is void unless
cured by the appearance of the PARTIES
6 Yerg 312; Yerg. 143. But it by no
means follows that a notice given FIVE
days before the commencement of term
that the motion will be made at that term,
is void foe insuficiency. Il may operate
inconveniently to parties to wait on the
movements Of the Attorney General for
several days or weeks, but only suggests .
good reason why the Attorney General
should not unnecessarily delay the making
OF the motion. Il does not make the no.
tice less valid or ineffective. If he should
delay to time when the parties might be
embarrassed in being able then to procure
their evidence for defence, this always Gd-
dresses itself successfully TO the Court, on
an application for q continuance.
But in this case the Attorney General re-
moved all ground for complaint. Besides
being very specific in his notice as to the
grounds of the proposed motion, it seems
that he fled in the office on the first day Of
the term the evidence on which he had
notified them he would rely in support Of
his motion. 1t further appears that defen-
dants waited five days after the motion
was made before they made their special
appearance for the purpose Of Directing to
the sufhciency Of the notice and that their
motion was hell over by the court for four
days before it was decided.
Nicholson J. delivering the opinion: We
are of opinion that the notice was sufficient
and the Circuit Judge erred in Diminishing
the motion of the Attorney General. Vide
case in II Hum /.
The question next presenteds;is, whether
we shall remand the question for trial in
the Circuit Court or proceed to render the
judgment here which the Circuit Judge
ought to have rendered below. We find
that when the Attorney General made his
motion he based it specifically upon certi-
fed copy of the official bond Of the Tax
Collector and an authentic statement Of the
account, showing the amount due from the
Collector for the year 1867, as appears up
on the books Of the Comptroller, both Of
which papers were fled with the motion.
This was all the evidence required by the
statute to entitle the State to 4 judgment.
II is insisted by the Acknowledgement for
the State, that upon making the motion
and adducing this evidence, the law made
it the duty Of the court to give judgment
against the defendants for the amount thus
shown to be due, unless for sufficient reason,
suggested on oath, the court should require
the production of the original bond. He
maln6ains that the law not only makes this
evidence sufficient, but that the court has
no discretion, but is bound to render jGdg-
ment, and that the defendants are RENTED
70 the Comptroller for the settlement Of
the Judgment by the allowance by him of
any authenticated claims upon the Tax
Collector.
To determine the question thus raised it
becomes necessary to construe the provi-
sioDs of the code bearing upon the subject.
The Comptroller Of the Treasury is now
a Constitutional officer Ofthe Executive De.
partment Of the Government, and has the
superintendent and control Of the finances
of the State, with his powers and duties
specifically defined by law. 1t is his duty,
among many others particularly eDjoined,
TO examine and adjust all accounts and
claims against the State, which are by law
to be paid out of the treasury; to keep in
suitable books, with every person in every
county in he Statel authorized BY law to
colleet ana receive any part OF the revenue,
a regular account, and to transmit to the |
District Attorney In any district In |
which collecting officer may be
delineuenC, statement of the sum claim |
ed by the State, with directions to the at
torney to proceed by motion against the de- |
linquent and his sureties In the Circuit |
Court. Code, sec. POI.