Elmore County, Ala., v. Moon

• Decision Date: 23 October 1923
• Docket Number: 3962.
• Citation: Elmore County, Ala., v. Moon, 293 F. 297 (5th Cir. 1923)
• Parties: ELMORE COUNTY, ALA., v. MOON.
• Court: U.S. Court of Appeals — Fifth Circuit

293 F. 297

ELMORE COUNTY, ALA., v. MOON.

No. 3962.

United States Court of Appeals, Fifth Circuit.

October 23, 1923

J. R Thomas, of Montgomery, Ala. (Hill, Hill, Whiting & Thomas, of Montgomery, Ala., on the brief), for plaintiff in error.

B. P Crum, of Montgomery, Ala. (Holley & Milner, of Wetumpka Ala., and Steiner, Crum & Weil, of Montgomery, Ala., on the brief), for defendant in error.

Before WALKER and BRYAN, Circuit Judges, and CALL, District Judge.

CALL District Judge.

At the December term, 1921, of the United States District Court for the Northern Division of the Middle District of Alabama, the defendant in error filed his complaint against the plaintiff in error, in the first count claiming $6,000 for work and labor done during the year 1920. In the second count the claim is based upon a contract to make surveys and reports on the federal aid highway project in Elmore county, according to plans adopted and used and supervised by the state highway department of Alabama, wherein it was contracted to pay defendant in error and one Fulton Pace for said services 4 1/2 per cent. of the estimated cost of said work. The count further avers that said Pace did not perform any part of said contract and is not interested in said contract, but that the plaintiff below (defendant in error) did, during the year 1920, with the knowledge and consent or acquiescence of the county, fully perform the contract, and that the plans and report of said surveys so made were accepted and approved by said state highway department, and the estimated cost of the project by said state highway department was $132,214.38.

To this complaint three pleas were interposed by the county: (1) A plea to the jurisdiction, in that Pace, one of the parties interested in the subject-matter of the suit, is a resident and citizen of Alabama, and that said suit is brought in the name of Moon for the purpose of vesting jurisdiction in this court; (2) the plea sets out the contract between the probate judge of the county and Moon and Pace, and then avers that Moon and Pace filed a claim with the court of county commissioners of Elmore county, in which the amount claimed was $5,406.77, and to which was attached as an exhibit the estimate of the costs of the project as approved by the state highway engineer, and further avers that Moon swore that Pace had an interest, and therefore this court had no jurisdiction, Pace being a citizen of Alabama. The third plea sets out the same contract, the same claim as sworn to by Moon, with the same exhibits attached, and then avers that Pace is a material and necessary party to the action, is a citizen and resident of Alabama, and therefore this court is without jurisdiction.

The plaintiff in error demurred to each of the two counts on some 16 grounds. The defendant in error demurred to the pleas interposed. The first set of pleas were filed February 10, 1922. The lower court sustained the demurrer to these pleas, and the defendant filed three other pleas: (1) The general issue. (2) The allegations of the complaint are untrue. (3) The defendant is not guilty of the matters alleged.

Issue was joined on this last set of pleas, and a trial was had, which resulted in a verdict for the plaintiff below, in the sum of $5,961.61, upon which judgment was duly entered. To this judgment writ of error was sued out from this court. There are 37 assignments of error, the first 4 assignments of error are addressed to the court's action in sustaining the demurrers to the first set of pleas interposed as to the jurisdiction. The grounds from 5 to 18, inclusive, are addressed to overruling of the demurrer to the complaint. The discussion on the other assignments will dispose of the questions raised by these assignments.

Then follow assignments of error to the court's...