Corinth to Gulf Highway v. Carothers & Co.

• Citation: 92 So. 696,129 Miss. 645
• Decision Date: 26 June 1922
• Docket Number: 22343
• Parties: CORINTH TO GULF HIGHWAY ET AL. v. CAROTHERS & CO
• Court: United States State Supreme Court of Mississippi

92 So. 696

129 Miss. 645

CORINTH TO GULF HIGHWAY ET AL. v. CAROTHERS & CO

No. 22343

Supreme Court of Mississippi

June 26, 1922

COUNTIES. Supervisors can only contract as provided by law; and contract must be evidenced by order on minutes; board cannot bind county for contracts not let on advertisement to lowest bidder; board can-not consent to decree having effect of making new contract not in accordance with statute.

The board of supervisors of a county can only contract as provided by law, and such contract must be evidenced by an order entered upon its minutes. Section 361, Code of 1906 (section 3734, Hemingway's Code), requires certain contracts to be made only on advertisement and to the lowest bidder, and as to such contracts the board cannot bind the county by a contract unless the statutory conditions are complied with; and the board cannot, as to matters coming under the purview of this statute, consent to the entry of a consent decree in a suit in chancery having the effect of making a new contract and bind the county as to such contract not made in accordance with the statute, and a decree so entered is void.

HON. A J. McINTYRE, Chancellor.

APPEAL from chancery court of Alcorn county, HON. A. J. MCINTYRE Chancellor.

Suit by Carothers & Co. against the Corinth to Gulf Highway and others, in which there was a consent decree. Subsequently a petition was filed in supplementary proceedings to compel the county to pay a balance of the retained percentages on theory that board had breached its contract embodied in its decree and consequently plaintiff was entitled to all retained percentages. Decree for plaintiffs, and defendants appeal. Reversed and remanded.

Reversed and remanded.

W. C. Sweat, for appellant.

An individual, who is sui juris, can make any kind of contract and enter into any kind of agreement, and such contract, or agreement, if not contrary to law, would be binding upon him but the county can make no agreement, unless it is specifically authorized by law so to do; and the board of supervisors cannot bind the county, except in the manner prescribed by statute, and must be able to point out the particular statute which authorizes the doing of the thing or the making of the contract before it can be binding upon the county. The attorney for the county, who is employed by the board of supervisors, could certainly no more bind the county than could the board itself; and the fact that he appears in the suit could not give any validity to a decree otherwise void.

It is true that a person sui juris can enter a consent decree which will bind him, and his counsel may do likewise; but the county is not sui juris in the sense in which that term is ordinarily used, but is impotent to act, except as specially authorized by statute. The county cannot be bound by its board of supervisors or by its attorney, except by an order duly entered upon its minutes, and after all the formalities required by the statute are complied with which authorizes the board to take the action and its entry upon the minutes.

Robins & Thomas, for appellee.

In the first inquiry that the court makes in its suggestion for additional briefs, is what jurisdiction and power did the chancery court have to enter this decree and what power had the board of supervisors and highway commissioners to consent to such decree to bind the county. As we understand it the board of supervisors are the very parties to bind the county and as to the question as to what jurisdiction the chancery court had to enter the decree, if the pleadings in the original case were before the court, it would be apparent that all the matters disposed of in that decree were incidentally, if not actually, in issue in the original suit.

The original suit was brought by Carothers & Company for the purpose of recovering the retained percentage and damages on the part of the county for breach of their contract in failing to furnish the contractors material as required by their contract, and in failing to receive and pay for all the work done and to relieve Carothers & Company, the contractors, from doing any further work on the contract. It was especially set out in the decree and in the pleadings that there was a part of the contract on which no work had been done. The defendants the real parties in interest, the road district, and the board of supervisors, who as a board can act only for the county and road district, and the county itself through its legally retained attorney, Mr. Sweat, defended that suit and set out that the road district was not liable because it was claimed that the complainants in that case first breached the contract and prayed for damages against complainant, and denied the right to recover the seven thousand three hundred dollars retained percentage, or any part of it. So there was before the court in that suit the whole question of who was entitled to the retained percentage, who was entitled to damages, who was liable for the completion of the road, and how it should be completed. The whole matter was before the chancery court, and the chancery court had jurisdiction of all the parties by the appearance of those parties through their attorneys. We know that Mr. Sweat will not deny that he was the attorney for the county, and as attorney for the county, he had the direction of this particular road district affairs, as well as other road districts of the county, and that he appeared by virtue of his authority as attorney and counselor of the county of Alcorn, and the county of Alcorn acting for the road district, known as the Corinth to Gulf Highway.

The chancery court, as a court of general jurisdiction and especially as a court of equity, would have had the inherent power with the subject-matter before it and with the parties before it, and without consent to have made a decree to do justice and equity between these parties and to fix the terms upon which the retained percentage should be paid and also to fix the terms upon which the work should be completed and paid for; or to assess damages to either party in case the other failed to do his part or perform the decree. We submit that a party cannot appear by, his attorney, even though the appearance be made in the name of another, and contest and fight out a proposition and not be bound by what is done. He is as much estopped where he appears by his attorney in a case in another name as if that appearance had been in his own name, and this applies as well to municipal corporations and quasi-public corporations as to any ordinary litigant.

"One who has a right to make a defense, control the proceedings, examine and cross-examine witnesses and appeal from a judgment, though not technically a party to a judgment, may nevertheless have been so connected with it by his interest in the result of the litigation and by his active participation therein, as to be bound by such judgment. The courts look beyond the nominal parties and treat all those whose interests are involved in litigation, and who conduct or control the action and defense as real parties and hold them concluded by any judgment which may be rendered, as for example those who employ counsel in the case, assume the active management of the proceedings or defense, or who pay the cost and do such other things as are generally done by parties. In other words, by participating in the proceedings one is estopped by the judgment as to any question actually litigated and decided therein." (15 R. C. L., p. 1009, sec. 483). The above principle only applies to parties sui juris.

A consent judgment or decree is as much binding as where the case is tried out on its merits. Blackbourne v. Senatobia Educational Assn., 74 Miss. 852. "Courts have the general power of entering judgment by consent of parties and a judgment may be properly entered by a court for the purpose of carrying out a settlement and compromise of a suit. When made by consent it is presumed to be made in view of existing facts and that these were within the knowledge of the parties. 13 R. C. L., sec. 86, p. 643; Thompson v. Maxwell Land Grant, 95 U.S. 391, 24 L.Ed. 481.

An attorney of record in a court of general jurisdiction has the implied power to consent to a decree. 13 R. C. L., sec. 87, p. 644.

The second inquiry of the court is: The court desires to know under what statutes, state or federal, the alleged consent decree and contract thereby made is governed. We confess we do not know exactly what was in the mind of the court in propounding this inquiry. We do not think that the statutes, either state or federal, have anything to do with the rendering of this consent decree. If the court had jurisdiction of the subject-matters and the parties, unquestionably, it could enter a consent decree by virtue of the inherent power of the court. Of course a consent decree against a minor, or any other person not sui juris, would be void, but if the parties are sui juris and before the court, then a consent decree may be entered by the court just as effective and valid as if the matters had been litigated out and decided by the court.

The third inquiry says if we assume that the board of supervisors had authority to make a contract, such as the consent decree involved could it bind itself and bind the public without giving notice by advertisement and by an entry of an order on its minutes to let any particular contract that would in substance change a former valid contract. We do not think there was any new contract; or rather we think that the consent decree merely related to the subject-matter of the former contract. All the matters decided by the consent decree were involved in the first suit. The decree merely directed the carrying out of the mutual obligations of the...