Affirming, on certiorari, the ruling of the Court of Appeals in this case.
No. 14078. JULY 15, 1942. REHEARING DENIED JULY 28, 1942. O. H. Puckett, appointed clerk of the municipal court of Atlanta in 1917, continued in office until his death in 1937. During his administration private funds would be paid into court by private parties in garnishment and other cases, to await disposition by the court. The funds on being received by Puckett would be deposited by him in bank in one general checking account to the credit of "O. H. Puckett, Clerk." In that name he would draw against that account in favor of the individual party as directed in each case. The deposits accumulated to the extent that funds on hand exceeded current withdrawals. In that situation Puckett, leaving on deposit sufficient funds to meet customary disbursements, withdrew the surplus funds and placed them at interest in certain savings banks under his above-quoted name. Interest received from those sources was combined in one interest-bearing account also under the above-quoted name in the Fulton National Bank of Atlanta. The account was designated by the number 34240. When Puckett died this account derived solely from interest acquired as above outlined amounted to several thousand dollars. A controversy arose between the widow of Puckett as executrix, claiming the fund as individual property of the estate of Puckett, and H. W. Chambers in his official capacity as the duly qualified successor of Puckett as clerk of the court. All moneys demanded by parties to the various cases in court were duly paid by Puckett; but if the interest fund in question should be awarded to the executrix, there would not be funds for Chambers to meet any claims for interest that might be adjudicated in their favor. It was stipulated however, by the parties to this case, that "It can not be determined or shown what interest, if any, was earned on any specific amount paid to O. H. Puckett." The trial court awarded the fund to Chambers as clerk. That judgment was affirmed by the Court of Appeals, after which *Page 402 certiorari was granted by this court. Pending the case in this court, Chambers resigned his office as clerk, and L. N. Walker, successor of Chambers, was made defendant in error.
1. The act creating the municipal court of Atlanta fixed the duties of the clerk as the same as those of the clerk of the superior court. Ga. L. 1913, pp. 145, 155, § 23. Among others is the duty "to receive . . all . . sums whenever required to do so by law, or order of the judge, and not otherwise." Code, § 24-2720. If the clerk receives "any money on any suit or judgment . . and . . [does] not faithfully account for it," he is "liable to rule as sheriffs are, and" he and his "sureties are likewise liable on their official bonds." § 24-2722. The sole compensation of the clerk is salary payable by the county, and he is inhibited to "receive to his own use any fees or perquisites of office." Ga. L. 1913, pp. 145, 153, 156, §§ 16, 23. Under these laws, moneys incidentally coming into the hands of the clerk from parties to cases in court are deposits for safe-keeping to meet the requirements of the orders or judgments of the court.
2. The duties of the clerk with respect to such deposits are purely ministerial. His actual possession of the money, arising from its receipt from the party paying it in, is not in his own right, nor does he acquire an individual interest. Neither does he acquire authority to substitute for the court a different depository, or to speculate by putting the money out at interest, thereby taking risk of a loss. If he does so, and collects interest under color of his office, such interest should be regarded merely as enlargement of the original deposits, and not for his individual enrichment. This accords with the principles stated in Ricks v. Broyles, 78 Ga. 610 (3 S.E. 772, 6 Am. St. R. 280), although the facts were not exactly the same, and the custodian being a receiver whose powers were not prescribed by statute as those of the clerk of court. See Perdue v.McKenzie, 194 Ga. 356 (21 S.E.2d 705).
(a) The instant case, involving authority of the clerk to put out at interest money held in custody of the court, and to apply to his individual use interest so received by him, stands on a different basis from Phillips v. Lamar, 27 Ga. 228 (73 Am. D. 731), Gilmore v. Moore, 30 Ga. 628, Lamb v.Dart, 108 Ga. 602 (34 S.E. 160), and similar cases in this State and in other jurisdictions, where the question was as to liability of public officers not holding *Page 403 funds as custodian of court, and the powers of the officers were not under such statutes as mentioned in the preceding division. In the instant case the clerk held the fund as custodian of the court; and having no authority to lend the money, and no right to compensation beyond his salary, he had no individual right to interest which he collected. The case differs also from Renfroe v. Colquitt, 74 Ga. 618, predicated on particular statutes. Neither did the case of Wiley v. Sparta, 154 Ga. 1 (114 S.E. 45, 25 A.L.R. 1342), involve personal claim to interest as in the instant case.
(b) It is fair to say in the instant case that the judge, to whom the case was submitted without a jury, was authorized to find that the clerk did not intend to apply the fund in question to his individual use.
3. The stipulation of the executrix of the deceased clerk and the successor clerk, as to impossibility of establishing claim for interest by any parties who deposited such funds with the clerk, would not be binding upon those making such deposits, or other possible claimants, who were not parties to the case and did not join in the stipulation; but neither the fact that such a claim is not likely to be asserted, nor its possible invalidity upon any ground if asserted, would confer upon the clerk any personal right to such interest fund, or enure in anywise to his benefit as such a claimant.
4. The foregoing sufficiently deals with the controlling questions in the case. Regardless of the reasoning on which the Court of Appeals based its decision, the judgment of that court was correct, and must be affirmed. The assignments of error in the petition for certiorari were by the executrix, and, under the foregoing principles, do not require a reversal of the judgment of the Court of Appeals.
Judgment affirmed. All the Justices concur, except Reid, C.J., and Grice, J., who dissent.