Tindall v. Nisbet , 113 Ga. 1114 ( 1901 )

Little, J.

There are two cases pending in this court, in each of which practically the same principles of law, resting upon the same facts, are involved, and the same person is the plaintiff in error. The first is that of Tindall v. Nisbet, clerk, in which a judgment rendered by Judge Candler, of the Stone Mountain circuit, holding the plaintiff in error to be in contempt of the superior court of Bibb county, is sought to be reversed. In the second case, which is entitled Tindall v. Westcott, sheriff, the same plaintiff in error seeks to reverse a judgment rendered by Judge J. H. Lumpkin, of the Atlanta circuit, which refuses to discharge the plaintiff in error from the custody of the sheriff of Bibb county, under the commitment made by Judge Candler. These two cases were by consent presented together in this court, and the adjudication now made determines each. After a careful examination of the record, and a consideration of the alleged errors which the faithful and able counsel representing the plaintiff in error insists were committed on the hearing of the cases in the superior court, we are forced to the conclusion that no error was committed by Judge Candler.in the rulings made in the contempt case, nor by Judge Lumpkin in the hearing of the writ of habeas corpus; and we affirm the judgment rendered in each of said cases. Many of the rulings made directly by Judge Candler were necessarily passed on by Judge Lumpkin on the hearing had before him. Without passing, in detail, on the several rulings made by Judge Candler which were not involved in the petition seeking a discharge from the custody of the sheriff,if indeed there be any, it is sufficient to say that in our judgment no error which entitles plaintiff to another hearing on'the proceedings to attach him for contempt, or to set aside the judgment finding him to be in contempt of court and ordering his imprisonment, was committed. In passing on the several questions raised on the hearing before him, his honor Judge Candler, in rendering his judgment, did not, in detail, elaborate the principles of law upon which his decision was made to rest. But in formulating the judgment by which he refused to discharge the plaintiff in error from the cus.tody of the sheriff, his honor Judge Lumpkin deals at length, and in detail, with the legal questions involved in the consideration of the ease on its merits. And the opinion rendered by this able judge, which we find incorporated in the record, seems to be so decisive of every material question raised, g,nd so clearly and forcibly ■expresses the view which we entertain of the law relating to these •questions, that we incorporate it herein, and adopt it as satisfactorily establishing the correctness of the conclusions which we have reached, and which are announced in the headnotes to these two ■cases. The opinion so rendered is as follows:

“In passing upon a proceeding seeking to obtain a discharge from custody by writ of habeas corpus, it is my general custom -simply to order a discharge, or to refuse it and remand the prisoner. But the present case is one of such importance and interest that I feel it to be the duty of the presiding judge to do more than this, ¡and to give some expression of his views on some of the principal points involved. This is indeed an important case. It is important to the prisoner, because it involves his liberty. It is important to the courts, because it involves the question whether they' ■can have the assets which they take into their custody preserved,, ■and see that their receivers honestly and faithfully discharge their ■duties and properly dispose of property and funds entrusted to their keeping, or whether they can not; in a word, whether they can •control their receivers, or whether their receivers shall control them. It is also of interest to the judges to know whether, after •one of them has carefully and patiently considered the conduct of -a receiver and has adjudged him in contempt, another judge of like •court will promptly upset his judgment and turn the prisoner loose •on a writ of habeas corpus. Of course, if the detention is illegal the prisoner will be promptly discharged, but if it is a matter of •discretion, or of reviewing what the judge who rendered the judgment has done, the second judge should not be over-ready to interfere. Such appeals should be more naturally addressed to the judge whose judgment is sought to be modified or revoked, or to some other judge with proper jurisdiction, hy petition, rather than to another judge by petition for habeas corpus. This case is also of great interest to the public. When creditors'or others institute-proceedings under which a receiver is appointed, they and the defendants would like to know whether such appointment is a means-of preserving and safely keeping the property and funds involved, or whether it is simply a proceeding to take the property of others and turn it over to a receiver for his own use; and whether at the end of the litigation they will get what the court placed in the safekeeping of its officer, or whether they must be satisfied with the-information that the receiver has misappropriated their funds, but. that, inasmuch as he says that he has spent them, the court who-appointed him is helpless and powerless to compel the restoration, or faithfulness and honesty on the part of its appointee. It must, present to the mind of the litigant a rather cheerless idea of law and courts if he were told that the court could take his property or money out of his hands and place it in the hands of a receiver for safe-keeping, but could not see that it was safely kept; and that he must be quite content at the end of the case to get nothing, if the receiver should step up and admit that he had misappropriated the funds, but defy the court to make him perform his. duty, merely saying in effect that he had taken the money, but he had also spent it, and really did not see how he was to deliver it. to those to whom it rightfully belonged, or as the court should direct. The truth is, that in these days, when there is so much of' peculation and dishonesty in positions of trust, for a court to accept-any such excuse and allow any such precedent to be set for trustees and receivers, would seem to me little short of judicial outrage upon litigants and the public. See Wimpy v. Phinizy, 68 Ga. 188. That a thing may be a crime does not also prevent it from being a contempt. Justice should ever be tempered with mercy,, but to temper justice is not to destroy it, or to weaken it to the-point where sentimentality for a faithless trustee or a criminal shall encourage crime in others or work a positive wrong to the innocent and injured. Eeceivers might as well learn first that misappropriation can have but one end — the jail. In what I say, it-would seem needless to remark that I am actuated by no sort of feeling against this prisoner. Personally he was wholly unknown to me. If I had a feeling towards him it would be one of pity and sorrow. To hear of a fond wife and innocent children who must-suffer on account of his wrong is touching, but it is quite possible-that some of the creditors in the equity cause also have wives and children; and it is one of the saddest things in life that a man can-never do wrong and suffer alone. The web of human lives is sa interwoven that no individual thread can be drawn out to itself without straining and tearing those intertwined with it.

“ Many of the points made by the petitioner have been passed upon and concluded by the judgment of the Hon. John S. Candler, before whom the rule against the receiver was tried, and who adjudged him in contempt and sentenced him to jail. To have so adjudged must necessarily have covered and concluded every fact necessary to such adjudication. A writ of habeas corpus is not a means of reviewing a judgment, or of considering whether there were any errors or irregularities in it; but the judgment must be so far void that the detention under it is illegal, in order to authorize a discharge under this writ. A motion to modify or a writ of error may reach errors or irregularities, if any exist. To a large part, if not all, of the petition I might have sustained the demurrer of respondent; but, in the interest of a full and thorough hearing, wherever a question of liberty is at stake, I preferred to reserve the rulings on the law questions so raised, and decide the case after having before me all that might be lawfully offered. To illustrate, in Judge Candler’s judgment it is stated that it is adjudged that the receiver ‘has been and is now in contempt of court,’ and it is ordered and adjudged that he ‘be required to at once pay to the clerk of the court the sum of $6,021.17, the same being the amount which is hereby adjudged to be in his hands, with which he is properly chargeable under the evidence, and for which he has failed and refused to account/ That such judgment is conclusive unless reversed or set aside, see Thweatt v. Kiddoo, 58 Ga. 300. It is suggested that the decree directing the receiver to pay over the funds to the clerk was not based on pleadings or the record. I do not understand that a judge can give no direction to a receiver except upon pleadings of parties and findings. The receiver is his officer and subject to his directions and findings. Suppose he deemed a certain action of the receiver necessary for the preservation of the fund, is he powerless to order it unless somebody presents pleadings about it ? Must he induce some one to plead and get a judgment before he can order the receiver to do some necessary thing? A verdict or auditor’s report rarely, if ever, undertakes to direct the receiver what to do. It finds debts, amounts, and priorities,, and leaves the judge to decree how and when the receiver shall pay out or deal with the fund in his hands, having in view such finding. -It is said that the order requiring the deposit, by the receiver in banks was a special order, and provided how the funds should be drawn out; and that the banks were liable if they let it be taken out otherwise. It may be said that this was before Judge Candler and must have been passed onjby him. But if it were an open question, is it possible that a receiver can say to the court, in effect, ‘ You told me to deposit, and instructed me not to draw out the fund, save only to pay expenses, except in a certain way. I violated this instruction, and got the fund and. used it; but possibly the banks are hable for having joined or aided me in'this malfeasance, or for having allowed it wrongfully, and therefore the court is powerless to deal with its officer?’

“ It is urged with great earnestness and ability that Judge Felton was disqualified from presiding in the equity case in which the receiver was appointed, and was -disqualified from making the decree which contained a direction to the receiver to deliver the fund to the clerk; that the decree as to the receiver was a nullitythat the rule was dependent on it, and, being dependent on a nullity, must itself be void.. It is quite true, if a proceeding is dependent for its own validity upon a nullity, it must fall. It may be doubted whether the proceeding before and judgment of Judge Candler were wholly dependent upon Judge Felton’s decree. But suppose they were, is that any ground of defense to the receiver? In the first place, this same man was a member of a firm who were plaintiffs in the petition under which the receiver was appointed; they saw the case steadily proceed, without objection; this petitioner himself heard Judge Felton discuss his disqualification and decline tfc> preside in the case unless by consent or agreement, heard the judge, when urged'to preside, inquire if there were any objection, sat silently by and saw him preside and make the decree. Can he be heard to say that Judge Felton was disqualified ? It is said that he was only a party to the decree as a creditor and not as a receiver, and hence was only bound or estopped in the former character. But he is the same man, and he saw and heard, and said not a word in any character. Even if a judge who was disqualified by reason of relationship to try a case should preside and render a decree, his disqualification could not be set up as a ground for a writ of habeas corpus. Daniels v. Towers, 79 Ga. 785; Shope v. State, 106 Ga. 226. Again, this very receiver,as receiver, made a report to the court, on February 21, 1901, in which, among other things, he set out that he had made certain expenditures in paying premiums on his bond as receiver, and prayed that they be allowed as part of his expenses; and they were allowed on February 22, 1901, in the very decree which the said receiver now seeks to attack as void. Can he apply to the judge for action, obtain the thing he asks, and then attack the decree which he thus in part obtained, as void on the ground that the judge was disqualified to act? If he was not estopped when he heard the judge ask if there were any objections to his presiding and said nothing — if he was then listen-, ing only with his individual ear and was deaf in his official.auricle, surely the proceeding just above stated estops him. Is it possible that a receiver can act under the orders of a judge, make a report to him, invoke and obtain action by him, and treat him as qualified to do everything in the case, and yet raise the question of qualification when it suits him ? Is the judge qualified to do what suits-the receiver, but disqualified to do what displeases him ?

“ It is also urged that the receiver was entitled to a trial by jury under the rule against him; and this is claimed both under the constitution and the acts of the legislature. This very question was before Judge Candler and was tried by him, and a writ of habeas corpus is not the mode of reviewing his decision. 15 Am. & Eng. Enc. L. (2d ed.) 176; People v. District Court, 46 L. R. A. 855. But aside from this, the constitution of 1877 (Code, § 5876) provides that ‘The right of trial by jury, except where it is otherwise provided in this constitution, shall remain inviolate.’ This provision confers no new right of trial by jury, but merely guarantees that ‘the right of trial by jury [that is, the pre-existing or established right] shall remain inviolate.’ Has there ever existed any right on the part of a receiver, who disobeys the orders of the court of his appointment and violates his duty, to demand a jury trial ? He has never had any such right to be violated, and the constitution has no reference to any such matter. Through all the English practice and in all the practice under the various constitutions of this State, if any such right was ever allowed or established, I am not aware of it. 154 U. S. 447 (6), Brinson’s case; 134 U. S. 31—40 (4), (5), Ellenbecker’s case. In Akers v. Veal, 66 Ga. 302, it is held .that ‘ A receiver, when called upon by the court to account for funds in his hands, can not command a jury to pass upon such accounts.’’ Similar rulings have been made as to equity cases. Lamar v. Allen, 108 Ga. 159—162; Hearn v. Laird, 103 Ga. 271—276. An attachment proceeding arising in the course of or incident to an equity case is itself very closely allied to an equity cause. Hayden v.Phinizy,67 Ga. 758. Thus there is no constitutional right of trial by jury in this case. Is there any statutory right ? Prior to the act of 1892, § 4046 of the present code had long stood on the statute books; yet no court ever supposed that under it a defaulting receiver was entitled to a jury trial.. Indeed, before the act of 1892, it was held that, even as to others refusing to deliver money to a receiver, there was no such right. Ryan v. Kingsbery, 88 Ga. 361 (3); Kingsbery v. Ryan, 92 Ga. 109 (3), 117; Cobb v. Black, 34 Ga. 162. Besides, the Supreme Court has in effect held that the limitations apparently sought to be placed upon the superior courts by that section, as to defining contempts, were unconstitutional. Looney v. State, 111 Ga. 168. In 1892 the legislature passed an act which is relied on as conferring on this receiver a jury trial (Acts 1892, p. 65, Code of 1895, § 4046). Whether or not this is an amendment by adding a proviso to an unconstitutional section, so far as the superior court is concerned, and if so, what effect it had, need not be discussed. Suffice it to say that, in my opinion, it was never the intention of the legislature by the act of 1892 to deal with cases of this character, or to apply that law to them. That act was passed to deal with cases where money was alleged to be in possession of a person who refused to turn it over to a receiver, and similar cases; but not to cases like this, in reference to failing or refusing to ‘ pay over’ money. Now money which the court has in its possession or custody by its receiver has already been paid over. The terms employed show that the legislature did not contemplate a case where the fund is already delivered into the hands of the court’s officer, and where the court gives direction to him. -

“In Akers v. Veal, 66 Ga. 302-304, supra, it is said: ‘Receivers are but the officers of the court appointing them, and they are required to account to the court for all receipts and disbursements of the fund received by them. They are not governed by the same rules that regulate the proceedings between parties litigant. Ordinarily they will not be allowed to make expenditures' ■which will materially reduce the fund in their hands without the-sanction of the court; and they should get permission as to such expenditures before they are made, as they are always to be held to a strict accountability therefor. A court, in passing upon the accounts of its receiver, should never ratify any expenditure which has not been necessarily incurred for the benefit of the estate entrusted to his care. High on Eeceivers, §§798, 799. The fund confided to a receiver is considered as being in custodia legis for the true owner, the court itself having the care of it by its own creature or officer, and who is often spoken of as the “ hand of the court.” High on Eeceivers, §2. Hence, when this “hand of the court” is called upon to deliver and account for the fund, it shall not be permitted to reply that “ I demand a jury to pass upon my stewardship before I surrender it.” ’ It seems clear that when money has already been ‘paid over’ to the receiver and is in custodia legis —in the keeping of this hand of the court, the legislature never dreamed that the court could not deal with its own legal hand without having a jury trial. The jury is an important factor in court procedure; but it would indeed be a remarkable and humiliating spectacle if a court, having the fund in its custody through this creature or officer of the court, could do nothing save after a jury trial, with ensuing motion for a new trial and bill of exceptions. To so decide would be to block efficient court proceedings, and to hold that the head can not control its own hand without the aid of a jury. No such act has been passed; and if any such should be proposed, it should have the caption of ‘ A bill to be entitled an act to authorize and encourage misappropriation on the part of receivers.’ That the general words used in the act of 1892 are to be construed in the light of the purpose of the act, see Lee v. Lee, 97 Ga. 736-737. Let it be noted that this receiver made no real denial of having committed a breach of duty.

“ It is suggested that the limit of twenty days imprisonment provided for an act of contempt applies. Not so. A failure or refusal to comply with the order of the court to deliver or 'pay money or the like, or to purge the contempt, is a continuing contempt, and the court may pass judgment that its officer be imprisoned until he shall comply. Cobb v. Black, 34 Ga. 162, 166. It is a civil proceeding. Drakeford v. Adams, 98 Ga. 722. It is suggested that there are two things set out in the proceedings: one, disobedience in drawing the checks; and the other, refusing to pay the funds as ordered. It is probable that both were closely allied and became in a measure consolidated; but if the sentence for disobedience as to drawing checks were limited, the judgment of imprisonment for failing or refusing to pay funds is not so limited, and may be till payment or proper purgation and further order, or the-like. The same thing may be said of the complaint that the sentence is indefinite. In civil or remedial proceedings for contempt the judgment need not fix a definite time limit for its termination. Cobb v. Black, 34 Ga. 163—166; Drakeford v. Adams, 98 Ga. 722, supra; 7 Am. & Eng. Enc. L. (2d ed.) 68—69. Even if this sentence were more than Judge Candler could have lawfully imposed (which I by no means wish to be understood as holding), and even if it could be conceded that he could only have sentenced the present petitioner for twenty days (which is not the law and is not con-* ceded), still this prisoner has not been incarcerated for twenty days, even under his own theory, and he would have no right to discharge under writ of habeas corpus until his detention is illegal. In no event is it now illegal. Is it possible that any one familiar with the law really supposes that the legislature intended to say that if a receiver should take and hold or misappropriate all the funds-entrusted to his care, perhaps many thousand dollars, the court-could not coerce him to perform his duty, but could only put him in jail for twenty days ? If the judgment of Judge Candler is in any respect irregular or erroneous, it may be corrected by a writ of error or motion to modify, but not by writ of habeas corpus. Even if the sentence is excessive, which it is not, would it be ground for discharge on writ of habeas corpus? 15 Am. & Eng. Ene. L. (2d ed.) 171.

“Finally, it is said that there should be a discharge of this prisoner, because he testifies that he can not pay the sum required of him or comply with the order of the court. There is no explanation of what he has done with the money, but only the bald statement that he is unable to pay it. Shall receivers, sheriffs, and attorneys, who have funds entrusted to their care, be discharged by merely saying that they have spent the money which did not belong to them, and can not pay ? Surely not. To wrongfully place one’s self in such a position gives no right of discharge. It is true that perpetual punishment is not contemplated; but a showing of' inability does not give any actual right to terminate imprisonment, but addresses itself to the discretion of the judge. In Kingsbery v. Ryan, 92 Ga. 114, it is said that ‘If, as a result of the investí-' gation above referred to, it should unequivocally appear that Ryan in fact had no money when the demand was made upon him by the receiver (a possibility suggested by Judge Clarke in his opinion already alluded to), it would by no means follow that the judgment of contempt would be ipso facto set aside or made void.’ See also Wimpy v. Phinizy, supra; Harris v. Bridges, 57 Ga. 407; Smith v. McLendon, 59 Ga. 527; 15 Am. & Eng. Enc. L. (2d ed.) 173. This and the next position really have no place in habeas corpus proceedings, and are not properly incorporated in them; but should be by petition to the court. But counsel on both sides stated that they were willing to have them considered as if no petition were addressed to the judge’s discretion. The last ground urged is an appeal to the judge on the ground that the petitioner has been sufficiently punished and should be discharged. That any such position should be urged can only be attributed to the zeal of able counsel and sympathy for the prisoner’s family. Of course, it can not be seriously expected that any conscientious judge will hold that less than two weeks in jail is a sufficient punishment for a receiver who, under Judge Candler’s judgment, is wrongfully withholding some six thousand dollars. I would that I could, with due regard to the law and my duty, restore this man to his sorrowing family. The tears of his wife and the shame and suffering of his children appeal to deep-seated feelings of the human heart. But a judge has resting upon his shoulders a high duty, and he must act under the solemn sanction of his oath of office. He can not give way to sentiments of pity or of sympathy for those whom petitioner has brought to suffering, and do that which would set an evil precedent and perhaps work untold wrong to many people. When in fact this petitioner shall comply with the judgment of Judge Candler, or when, on proper proceedings, it may appear fully' and in fact that he can not do so, and the judge who may hear the case shall deem that he has been sufficiently punished, he may discharge the applicant if he so decides. But with a just appreciation of my duty, I can not do so now.”

Judgment in each case affirmed.

All the Justices concurring.