Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1873-08-14

/ SPECIFICALLY ahCnnCo ~ law ~ 10 LIE 0lb1 .
among many others particularly enjoined,
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 pe. son in every
equity Ina The State authorized by law to
collect and receive any part of the revenue,
a regula. account, and TO transmit to the
District Attorney In any district in which
q collecting officer may be delinquent, a
statement If the sum claimed by the State,
with directions to the attorney to proceed
by motion against the delinquent and his
sureties lathe Circuit Court. Code, sec.
| 207. ..-.--
The Comptroller's statement of the
! amount due the State from any delinquent
shall be prinaG .fdcie evidence of such
amount, and a copy Of his bond from the
| Comp.roller's office shall be received as
evidence of the facts appearing on is face,
unless for sufficient reason, suggested on
oatf, the court require the production of
the origin /. Code, sec. 1872.
The court shall render Judgment against
| him and bis sureties for the amount ap-
pearing due from the statement of the
Comptroller, OR the penalty of the law
where there Is no statement. Code, sec.
| 1888. FEaE Ew FN kas =
IL there be no statement Of the Comp
troller, q judgment nisi shall be rendered
for the penalty Of The bond, aud the defend
ant may have an issue made up to prove
The amount due, and judgment penal
shall be given for ouch amount. See Code,
734. EQEg FE-a.e 30
Where Judgment has been obtained
against delinquent officer, all bona tide
claims due him, properly authenticated,
shall be allowed by the Comptroller On
settlement of the judgment. Sse Code,
742. E--. SOD 80
1t is observed that two classes of cases are
| provided for 1st. Where the books of the
Comptroller, furnish no evidence of the
amount due-in that case the motion is
based upon copy of the bond and upon its
production. The court is required TO en-
ter judgment aiSi, for the penalty of the
bond-no provision is made authorizing the
delinquent to dispute the right to ouch judy
ment. But he has the right, after the judy
ment niSi is rendered to have an issue made
up, to make proof of any credits for which
he may be entitled. This proof deYolves
entirely on him, for the reason that the
comptroller's books furnish no other evil
dence than copy of the bond. Upon this
issue the judgment is to be final.
| The other case is where the Comptrol-
ler's books contain the evidence of the
amount Of tie delinquency. In that case
the authenticated copy from the Comp
| troller's books is made pIima facie evidence
Of the amount due the State. Upon the
| production Of this evidence with copy of
The bond, it is made the imperative duty of
the court to render judgment against the
delinquent and for tia amount appearing
due from the statement of the Comp
troller. The language Of the law is explicit,
emphatic and mandatory-''the cour5 shall
render judgment"-but not only so, bat for
| the sp- ci6c amount stated by the Comp
troller. This language msniiestly contem-
plates no trial of an issue as to the
amount due. Bat how is this to be recon-
| ciled with previous sections which make
the ComptrolIer's statement prisnd Jdcie
evidence of the amount? This necessarily
| implies that the statement Is not conclusive
evidence, but that the presumption may be
rebutted by proof. But it is observed that
the judgment orLered to be entered, is not
declared to be final judgment, as in the
case where no statement is published. 1t
is observed further, thai by sec. 742, the
| Comptroller is TO se!tle with the delinquent
collector upon the basis of judgment, snd
On that settlement he is to allow
all bona tide claims due the co..
lac.or. TIE judgment therefore which
is based on the statement is not conclusive
against the collector. The only fair inter-
probation IF the several provisions is, that
viii e the statement Cf the Comptroller is
only prima .fdcie evidence of the amount
due, it is to be held by the court sufficient
Tor the rendition If judgment for the
amount shown by the statement, which
shall not be c0ntroverted before tn court,
but which may be controverted before the
| Comptroller en- the settlement Of the judg-
ment with the Comptroller. The effect
| Of the policy thus established is, to with
| draw from the court the settlement of the
accounts of delinquent collectors and to
turn them over, after judgment, to the set
Element OF the financial officer, whose bust
ness it is to examine and adjust all claims
and accounts against the State, and whose
official books furnish the proper evidence
| for such settlement. The policy was TO
send the ceIinqusnt Collector to The Com p.
troler's Office for settlement, and no. to re-
quire the Comptrol er to attend the courts
in the several counties, with his books, fol
the purpose Of contesting issues with the
delinquent officers. Whether this was good
policy or not, is lot question for our ais.
cuss on. We fed The policy so written in
the statutes, and our duty is to declare and
enforce it.
| Upon our construction of the law, there
fore, it was the duty of the Circuit Jadge
upon the motion of the Attorney General
and the reduction of the authenticated
statement Of the Comptroller and a csrti.
fed copy CT the Colleclor's bond, at oncs tC
give judgment against the defendants fol
the amount shown TO be due by the state
menL; this judgment, upon application to
the Comptroller, TO be subject to such cred
it's as, upon settlement, the Comptrollel
should find the Collector was entitled to
and for any ba'ance an execution would
issue.
But the question now presents itself, can
this court proceed to render the judgment
| which the court below ought to have rem.
dered? We are of opinion that the case is
not before us in shape to authorize US to
render judgment. Defendants interposeC
a motion which precluded the Attorney
General from Offering the evidence OF
which he claimed g judgment. The evi
derce though on file, was not offered o.
used, and could not be until the prelimina
~ motion was disposed of. The Judgment
of the court on that motion ended the case
and LETT the evidence On which the Attorney
General intended to rely, outside OF thu
case. Il is not brought before US by Dill o
exceptions, or other y Use than as it is cOpieC
into the transcript as having been filed il
the case. Besides, the defendants have
right, upon proper reason shown, to require
the production of thu original bond of the
Collector on the trial. We have not exam
ined the terms or conditions of the bond
copied with tn re .orj, as it is not before
US for any purpose, and it is not intendeC
TO prejudice the defendants as to any de
fence arising hereunder to which the,
may be entitled under The provisions Of Tx
Code.
This probably alludas to the RESTRICTIVE
provisions of sections 773 to 776 of tn
Code.
For these reasons we are bound to refus
the judgment asked for here, but we re
verse the judgm mt of the Circuit Judge an
remand the cause to be proceeded in as in
Dictated in this opinion.
s NICHOLSON, Judge.
All, Far LAVE