State Ex Rel. Cherokee County v. Brown

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 225 April 25, 1938. The opinion of the Court was delivered by The issue before us is whether the lower Court erred in adjudging the defendants, H.M. Brown and American Surety Company of New York, liable for the sum of $2,404.50 on account of penalties which the defendant, Brown, then treasurer of Cherokee County, failed to collect from the four textile mills, Alma Mills, Hamrick Mills, Musgrove Mills, and Limestone Mills, known as the Hamrick group of mills.

His Honor, Judge Oxner, by whom the cause was heard, held that under the evidence and the applicable principles of law, both the treasurer and the defendant, American Surety Company of New York, are liable, and accordingly gave judgment against them in favor of the plaintiffs. The same questions are presented to us by this appeal which were *Page 231 considered in the lower Court, and one additional issue which was not before Judge Oxner.

We have carefully considered the able brief of the appellants, but are convinced that Judge Oxner has correctly decided the questions involved in his able and well-considered order, which we adopt as the judgment of the Court, and which will be reported.

The defendants likewise appeal from an interlocutory order passed by his Honor, Judge Sease, in which he overruled a motion of the surety company to bring the Hamrick group of mills in as parties defendants. It is conceded that this motion was addressed to the discretion of the lower Court, but it is submitted that the Circuit Judge erred as a matter of law in failing to hold that a complete determination of the controversy could not be had without the presence of the four mills, and in holding that whatever supposed rights other parties may have will not be adjudicated in this action.

His Honor, Judge Sease, after referring to Section 409 of the Code, which provides, among other things, that the Court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, held that the bringing in of other parties (the mills), upon the conjecture that their rights might be affected by the final determination of the issues between the plaintiffs and the defendants in this action, would tend to confusion and to obscure the real issues between the parties then before the Court. We think Judge Sease was correct in so holding, and in overruling the motion.

The plaintiffs brought this action against the principal, and the surety on his official bond, and we can see no good reason why the issues raised by the pleadings between these litigants could not be finally determined, as they were, without the intervention of any other parties or any other issues. We are of the opinion that the discretion of his Honor, Judge Sease, was wisely exercised. *Page 232

Exceptions overruled, and judgment affirmed.

MESSRS. JUSTICES BONHAM and BAKER concur.

MR. ACTING ASSOCIATE JUSTICE WILLIAM H. GRIMBALL dissents.

MR. CHIEF JUSTICE STABLER and MR. JUSTICE CARTER did not participate on account of illness.