Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1873-07-11
DECISION OF SUPREME COURT.
Important OpiniOn-ReVenue Law
DefauItiDg Tax Collectors.

DefauIttDS Tax COLLECTORS.
The following opinion was rendered a
the late term of the Supreme Court at Jack
SON in the case of Carlton and others Us
The State of Tennessee:
Three several cases are submitted TO n!
together, each being motion against Carl
ton as delinquent tax collector of Weakley
county, for failure to pay over balance o.
revenue for the years 1867, 1868, 1869 re.
spectively. His Honor, the Circuit Judge
rendered judgment against the plaintiff in
error and his securities, and he has appealed
to this Court. Several errors are assigned
here, the principal of which We will pro-
coed to notice in their order.
1st. 1t is said that the notice and the mo-
| ton are both insufficient and uncertain in
| this, that it does not appear whether the
| Attorney General moVts or the State OF
Tennes see moves for judgment. The cap
ton both of the notice and the motion is
! properly eni tiled the State of Tennessee VS..
| Wade II. Carlton, &C., but the motion pro-
ceeds, This day comes John p. Durlap,
Attorney General, &C., and moves for judg-
ment, &C.," 1t is argued, and correctly too,
| that properly the motion should have been
made in the name of the State, or on be-
| half of the State. But We do not concede
| that the mot on should have been dismissed
for this defect. The defendant appeared
and entered general motion to dismiss,
without pointing out this defect or any 9th
| er particular cause of dismissal. In one
case the motion to dismiss was denied and
| in the others no action of the Court was
had. But at all events the defendant ap-
peared and the causes were continued from
IN
sent and at others upon his appli-
cation until the October term, 1872, of
the Circuit Court, when judgments strictly
regular were entered against him and bis
securities. We think that this motion is
not fatally defective. The law gives the
motion TO the party aggrieVed, which is the
State OF Tennessee, and We think that to
complete the sense and meaning of the
motion we may supply the unimportant
phrase "on behalf of the State of Tennes-
see." Besides this, it is enacted by the
code section go, 'for any neglect or refusal
to settle his accounts the Comptroller and
Chairman or Judge of the County Court
shall proceed against the collector and his
sureties by motion, which shall not be
sbated, qasted or delayed by any want of
form OF informality in prosecuting the
same" We think that under this provision
the strictly technical objections, which even
this court has allowed to prevail ID sum-
mary motions generally are not allowable;
but that it is our duty to carry out the
plain requirements Of the Legislature by
treating this objection as one of form.
I'd. The next objection is to the action
of the court in admitting as evidence the
statement of the Comptroller over the OBJ
lection of the defendant. This objection
was made in general terms without point
ing out specifically the ground of objection.
But in argument it is argued here that the
statement should not have been received,
for the reason that it was not given under
the official seal Of the State, Ia Ingram
vs.. Smith /, Head 418, objection to read
ing paper was, that it was not "authenti-
Gated according to law" and because it
had not been fled in time. The Chancel;
lor in that case oVer-ruled the objections ard
was sustained by this court, w. f. Cooper,
Special Judge, saying, it has been repeated
ly held that the objections made to the
reading of evidence and exhibits in the
court below must be clear and specific, and
this for the obvious reason that the oppo-
site party may have the opportunity of cur
ing the defect if it be one, and not be taken
by surprise when that opportunity can no
longer be had. 1t has been repeatedly held
by this court that objections to evidence
must be specific. The case from which we
have above quoted was chanceIy cause,
but We thinK the rule and the reason of the
rule quite ss applicable TO trials at law.
Aud we therefore conclude that if defen-
dant wished TO avail himself of the specific
objection now insisted on, he should have
shown by his bill Of exceptions That it was
taken Ia the court below.
3. The bill of exceptions further shows
that the defendant offered to read some re-
ceipts from the Treasurer of the State
showing some payments the amount spe-
CITED in the Comptroller's statements, and
also offered to read the tax book delivered
to the defendant by the Clerk of the Coun-
ty Court for the several years. This evil
dence was EXCLUDED and it is argued here
that the effect of this ruling was to make
this statemeit of The Comptroilsr's conclu-
sive upon the defendant, while the statute
makes his statement Of the amount due
from any delinquent merely prima facia ev-
idence of suc1 amount. 1t will be observed
in these several records that the Comprol-
Ter, in accordance with the statute, merely
Z lllUCS Tic d1lOLALlL VI uLNOIICNJGN 4ChCuuC
Justly due the State. Now it is obvious
that the production of some receipts show
ing some payments would not contradict or
tend TO contradict the statement Of the
Comp troller that 3 balance was due,
because from aught that appears
the receipts may have been credited !
to the collector by the Comptroller, leaving
the specified balance still due. The tax
books offered in evidence together with the
receipts might have shown payments made |
subsequent to the date of the Comptroller's |
but as already observed the bill |
of exceptions neither shows the dates or
the amounts Of the receipts offered in evil |
dence, and as already shown unless they |
were subsequent TO the date of the comp |
troller's certificate they wouldn't contradict |
it. 1t is the duty Of the appellant when he |
seeks to put the Circuit Court in error, to |
point out the error committed distinctly. |
This is not done in the present case. The |
motions were tried by the court without /
the intervention of jury, and ara bouGd
to assume that the court considered all the |
relevant evidence offered, unless the con- !
trary distinctly appears from the bill of ex-
ceptions. The judgments in this case as
sumo the existence of all the facts necessary
to give the courts jurisdiction of the mo- |
tons and are regular in every respect. 1t |
is stated in the bill of exceptions that the
evidence offered by the defendant was ex- |
GUIDED. This phrase Of course ordinarily |
implies in bill of exceptions that the evi.
1eIce was excluded from the jury, bat the !
facts Eere being tried by the court, we mus |
infer that his Honor looked to the receipts |
and tax books when offered before him. 1t
IS said in argument to be sure that his Honor
excluded the evidence on the ground that
he Comptroler's statement was conclusive.
This nowhere appears, however, in the re-
,ord, and for aught that We can see, no evil
ience was submitted to the court to over
urn the primG facia case made cut by the
statement; we can discov-
Or no error in the action Of
MS Honor in directing the several judg-
nents to be entered against the defendant,
md the same We therefore affirmed.
If the plaintiff in error had incorporated
INTO this bill of exceptions receipts or any
,ther evidence showing specifically pay
nents necessarily contradicting the state
nent Of the Comptroller of the balance due
rom him, we would have considered
whether il displaced the prima facie case
made by that Statement. But we will not
,uess or presume that his Honor, the Cir
nit Judge, came to an erroneous conclu-