Board of Supervisors of Clay County v. Board of Supervisors Chickasaw County

• Decision Date: 21 March 1887
• Citation: 1 So. 753,64 Miss. 534
• Court: Mississippi Supreme Court
• Parties: BOARD OF SUPERVISORS OF CLAY COUNTY v. BOARD OF SUPERVISORS OF CHICKASAW COUNTY

1 So. 753

64 Miss. 534

BOARD OF SUPERVISORS OF CLAY COUNTY v. BOARD OF SUPERVISORS OF CHICKASAW COUNTY

Supreme Court of Mississippi

March 21, 1887

APPEAL from the Chancery Court of Clay County.

HON. S EVANS, Chancellor of the Seventh Judicial District, presided in this case, having interchanged with Hon. F. A. Critz.

In 1871 the legislature passed an act authorizing a new county to be created to be called Colfax, a certain part of the territory of Chickasaw to be included therein. This act contained a provision as follows:

"Section 7. Be it further enacted, That said county of Colfax shall pay its portion of the debts of the counties respectively from which said county of Colfax is formed, said proportions to be determined by the assessed value of the real and personal property within its limits, and that it shall also receive its proportion of the county and school funds."

No steps were taken to organize the county under this act.

In 1872 another act for the creation of the same county was passed which contained a provision in the same words as the one above set out, except that the words in italics were omitted. Colfax County, now Clay County, was organized in about one month after the passage of this last act, and a part of the territory of Chickasaw County was included in the new county.

In August, 1880, the Board of Supervisors of Chickasaw presented, by petition, a claim to the Board of Supervisors of Clay County for fourteen thousand three hundred and forty-two dollars and three cents, which was alleged to be the pro rata part of Clay County under the above act of a debt paid by Chickasaw County to the bondholders of the Grenada, Houston and Eastern Railroad Company. The board of supervisors rejected the claim, and the petitioner asked and was granted an appeal to the circuit court on April 5, 1881. At a regular term of the circuit court the petitioner appeared and asked the court to dismiss its appeal and that a nonsuit be granted, and that it be allowed to withdraw the record and evidences of debt on file. This the court ordered except as to the withdrawal of the bill of exceptions.

Thereafter the Board of Supervisors of Chickasaw County filed a bill against the Board of Supervisors of Clay County to ascertain the amount of debt due from the latter, and to compel them to levy a tax to pay the same. The allegations of this bill are fully set out in the case of The Board of Supervisors of Chickasaw County v. The Board of Supervisors of Clay County, 62 Miss. 325.

The defendant filed an answer in which it set up numerous defenses. The complainant excepted to them all, and the court sustained all the exceptions but one, which was overruled. The exception overruled related to the defense set up in the answer, that this claim of complainant had become res adjudicata because of the action of the Board of Supervisors of Clay County thereon and the appeal taken to the circuit court by complainant. Afterward the defendant filed an amended answer, which was made a cross-bill. In this the defendant asked that it be allowed as an offset its pro rata part of the county and school funds of Chickasaw County on hand at the time of the formation of Colfax, now Clay County. The complainant demurred to this amended answer and cross-bill, the demurrer was sustained, and the cross-bill dismissed. The cause was set down for hearing by complainant before the expiration of the five months allowed by statute for taking testimony after answer filed.

The Chancellor rendered a final decree in favor of complainant for eighteen thousand four hundred and forty-nine dollars and forty cents, this being the pro rata share of Clay County of the several amounts paid by Chickasaw County as alleged in the bill, together with interest from the date of the several payments up to the rendering of the decree. The defendant appealed to this court.

Decree reversed.

Barry &amp Beckett, for the appellant.

1. The act creating Colfax County says that "it shall receive its proportion of the county and school funds." Act 1871, § 7, p. 802.

And in the same section it says Colfax County shall also pay its proportion of its debts. Counties are not like individuals possessing surplus funds, but their powers are granted by the legislature and confined to certain objects, and they are authorized to levy taxes and collect funds for these particular objects and these alone. Now, is it reasonable to suppose that the legislature by this seventh section intended for Colfax County to levy and collect taxes to pay its proportion of the debts of Chickasaw County to Chickasaw County, and that Chickasaw County should pay over to Colfax County its proportion of the county and school funds, or is it not more reasonable to suppose that the intention of the legislature was there should be an accounting between the two counties, and that only the balance should be paid over?

2. It is very plain that a plaintiff cannot appeal from a judgment against him and take a nonsuit in the appellate court. If this were tolerated no final judgment could ever be held against a plaintiff, for every time he lost he would appeal take a nonsuit, and commence again. If he takes a judgment in form dismissing the suit, it is in law but a dismissal of his appeal and leaves the judgment of the court below in full force. Miss. Cent. R. R. Co. v. Beatty, 35 Miss. (6 G.) 668; Freeman on Judgments, § 330 and note 5; 15 B. Monroe 145.

In this case, according to complainant's own showing, he appeared in open court and "takes a nonsuit." It is not even a judgment of dismissal or nonsuit by the court, but the complainant according to his record "takes" a nonsuit.

This is not a technical nonsuit, but a retraxit. 7 Bacon's Abrdg., title Nonsuit, p. 215; Work v. Byers, 3 Hawks. 228. And is a bar to all actions of a like nature. Ib. A retraxit is a bar to another suit, and an entry that the "plaintiff appeared by attorney and the plaintiff takes a nonsuit," is a retraxit. Evans v. McMahon, 1 Ala. 45; Thompson v. Odem, 31 Ala. 111, 112, 113.

But the circuit court had no power to grant a nonsuit. Its jurisdiction on appeal from the board of supervisors is limited by the statute. He could enter but one of two judgments--to affirm or reverse the judgment below. If no bill of exceptions is taken it does not gain jurisdiction and must dismiss the appeal, but if a bill of exceptions is taken it does gain jurisdiction and then "can only affirm or reverse the judgment below." Code 1880, § 2351; Bridges v. Supervisors, 57 Miss. 255; McNamara v. Speer, 25 Miss. 539, 541; Morse v. Speer, Ib. 543.

And if it is mandatory on a court to affirm or reverse a judgment, then any judgment which it renders, which is not a reversal, is an affirmance and res adjudicata. Hess v. Beckman, 11 Johns. 457, 458; Freeman on Judgments, § 330 and note 5; Campbell v. Mayhugh, 15 B. Monroe 145.

But even if we admit that the judgment of the circuit court was a dismissal, then the complainant is only allowed one year within which to bring a new suit. Code 1880, § 2686; Sang v. Fatheree, 7 S. & M. 404; Weathersby v. Weathersby, 31 Miss. 662.

The judgment of the board of supervisors is like the judgment of any other court, final and conclusive and res adjudicata "until reversed or vacated in some mode known to the law," and having let the one year elapse it is now too late to try to open it. Carroll v. Tishomingo Co., 28 Miss. 48, 49; Yalobusha Co. v. Casbry, 3 S. & M. 529, 547; Ross v. Lane, 3 S. & M. 695, 713; Arthur v. Adam, 49 Miss. 404, 409; Supervisors v. Arrighi, 51 Miss. 668, 672; Kline v. Supervisors, 54 Miss. 254, 258; Beamar v. Leake Co., 42 Miss. 237, 245.

3. It is clear that the liability of Clay County to Chickasaw County is a pure statutory obligation, and it is decided by our supreme court that interest is not recoverable against a county in such cases. Klein v. Warren County, 51 Miss. 816, 817.

4. It will be seen that the cause was set down by the complainant and tried by the court in just ten (10) days after filing the answer, and under the Code of 1880 the answer is to be taken as true. Code 1880, § 1893. It was error to give judgment for the defendant upon the facts stated in the answer.

W. S. Bates and J. B. Gladney, for the appellee.

1. Clay County was never entitled by law to make these cross- demands against Chickasaw. The appellant county purports to have been created by two separate and distinct acts of the legislature--one of the 12th May, 1871, Laws of 1871, p. 802, and the other of the 4th of April, 1872, Laws of 1872, p. 107. The main features of the two laws will be found different, and the most important features repugnant; to illustrate, the seventh section of the act of 1871 provides that, while Colfax County shall be liable to Chickasaw County for its proportion of Chickasaw's debts, yet Chickasaw was made liable to Colfax for a share of the county and school funds, while the act of 1872, creating Colfax County, made no such provision. A month after the passage of the act of 1872 the county was organized, as shown in the original bill of complainant. Dwarris on Statutes and notes, 154-164.

2. In the last amended answer appellant has made an effort to improperly interpolate his former answer to which exceptions had been sustained, but which, we think, might have been struck out on motion for impertinence if it had not escaped notice both by court and counsel. There being no issues on which it was necessary for appellant to take proof it is immaterial to his defense whether his answers are to be taken as confessed or not. Code 1880, § 1892.

3. On the subject of interest equity follows the law in granting it, and not only so, but often exercises an equitable jurisdiction, the granting of...