Excello Feed Milling Co. v. Warren County

• Decision Date: 26 May 1930
• Docket Number: 28887
• Citation: 159 Miss. 167,131 So. 270
• Court: Mississippi Supreme Court
• Parties: EXCELLO FEED MILLING CO. v. WARREN COUNTY

131 So. 270

159 Miss. 167

EXCELLO FEED MILLING CO. v. WARREN COUNTY

No. 28887

Supreme Court of Mississippi

May 26, 1930

Division A

(Division A. Suggestion of Error Overruled Dec. 8, 1930.)

1. APPEAL AND ERROR.

Order sustaining motion to strike and demurrer, though not expressly dismissing action, held appealable as order of dismissal, absent leave to amend.

2 PLEADING.

Count in amended declaration being merely transcript of original declaration, to which demurrer was sustained, could be stricken, unless demurrer should have been overruled.

3 PLEADING.

Motion to strike, though addressed to entire declaration, could be sustained in whole or in part.

4 HIGHWAYS. County board of supervisors, under order retaining funds of highway contractor, could not pay out funds except with contractor's or assignee's consent or pursuant to decree, barring contractor.

Order of board of supervisors withheld payment of amount due contractor on highway contract for the benefit of the persons legally entitled thereto, such amount representing claim of creditor who furnished feed for mules used by contractor in building highway, or until contractor or its assignee should give good and sufficient bond conditioned to save the county harmless.

5. ACTION.

Declaration alleging cause of action based on assumpsit and on common counts for money loaned, advanced, and paid, and for money had and received, held not demurrable for misjoinder of causes of action.

6. COUNTIES. Count in declaration in proceeding against county board of supervisors for indebtedness due contractor held to state causes of action in inaebitatus assumpsit.

Count in declaration alleged that county was indebted to plaintiff in designated sum for money "before that time loaned, advanced to and paid, laid out and expended for defendant at its request," and that the county was indebted to the plaintiff in the like sum "for money before that time had and received by defendant for the use of plaintiff."

HON. E. L. BRIEN, Judge.

APPEAL from circuit court of Warren county, Hon. E. L. BRIEN, Judge.

Proceeding by the Excello Feed Milling Company against Warren County. Judgment for the defendant, and plaintiff appeals. Affirmed in part, and in part reversed, and remanded.

Affirmed in part, and reversed in part, and remanded.

Brunini & Hirsch, R. L. McLaurin and Chaney & Culkin, all of Vicksburg, for appellant.

The defendant, through its supervisors, in entering the above order directing the money to be withheld for the payment of this account, was acting judicially and not ministerially, the order being equivalent to a judgment, and the only way that it could be attacked would be by appeal to the circuit court, as provided for by statute (Sec. 6, Hemingway's Code of 1927), and such judgment, when duly entered, cannot be collaterally attacked.

Arthur v. Adam & Speed, 49 Miss. 404; Klein v. Supervisors, 54 Miss. 254; Kelly v. Wimberly, 61 Miss. 548; Noxubee County v. Long, 141 Miss. 72; Campbell v. Humphreys County, 133 Miss. 410.

Mandamus is the proper remedy to enforce the payment of a claim against the county which has been allowed by the supervisors.

Taylor v. Chickasaw County, 70 Miss. 87; Jonestown v. Ganong, 97 Miss. 67; Hebron Bank v. Lawrence County, 109 Miss. 397; Town of Crenshaw v. Jackson, 122 Miss. 711; Oldham v. Lafayette County, 133 Miss. 505.

A general demurrer was first heard, and overruled, and a special demurrer was thereafter considered, and sustained by the trial court, to which action the appellant excepted. This action of the trial court was, reversible error.

Section 558, Hemingway's Code of 1927; Wilmot v. Y. & M. V. R. R. Co., 76 Miss. 374; Arnold Lumber Co. v. Ragland, 106 Miss. 51.

In support of the second and third counts of the declaration appellant cites sections 4 and 5 of 5 Corpus Juris.

Henry & Henry, of Vicksburg, for appellee.

The board of supervisors of Warren county is no tribunal, stretching its quasi-judicial capacity to the extreme, to pass on the validity of an open account existing between Bass & Company and the Excello Feed Milling Company, adjudicate the set-offs, counterclaims, or other perfect defenses which Bass & Company might have, or did have, to the account exhibited against them.

It is a frequently asserted and universally recognized rule that mandamus only lies to enforce a ministerial act or duty; in this sense a ministerial duty may be briefly defined to be some duty imposed expressly by law, not by contract or arising necessarily as an incident to the office, involving no discretion in its exercise, but mandatory and imperative.

18 R. C. L., sec. 28, page 116.

Where a discretion is left in an inferior tribunal, the writ of mandamus can only compel it to act, but cannot control the discretion.

Monroe County v. State, 63 Miss. 135; Attala County v. Grant, 9 Smedes & Marshall, 77; Vicksburg v. Rainwater, 47 Miss. 547; Clayton v. McWilliams, 49 Miss. 311; Robinson v. Ittawamba County, 105 Miss. 90.

The motion to strike was properly sustained by the lower court as to the first count of the amended declaration as the same was practically identical with the statement of facts and the allegations of the original declaration.

Forrest B. Jackson, Assistant Attorney-General, for appellee.

The motion to strike the first count of the declaration was properly sustained. The first count of the amended declaration filed by the plaintiff is identical with the original declaration filed by the plaintiff, and inasmuch as the court had already sustained a demurrer to the first or original declaration, the pleading by plaintiff of the first count in the same language was a frivolity and as such a motion to strike was the proper plea on behalf of the defendant.

The demurrer as to counts two and three was properly sustained.

The case of Alford Lumber Company v. D. L. Ragland, 106 Miss. 51, 63 So. 338, holds that if a demurrer is not a defense to the whole declaration to which it is applied, it should be overruled.

The demurrer in the instant case is not a special demurrer, although it is referred to as such in the order of the court sustaining same as to the second and third counts. The demurrer is divided into three parts, but each of said counts contains practically the same causes of demurrer and goes to the sufficiency of the pleading in stating a cause of action against the defendant.

The remedy of the plaintiff for the supplies furnished is not against the county but is against the bond of the contractor for construction of the highway.

Section 4040, Hemingway's Code 1927; Section 2598, Hemingway's Code 1927; Mississippi Fire Insurance Co. v. Evans et al., 120 So. 738; Dickson v. U. S. F. & G. Co., 117 So. 245.

OPINION

Smith, C. J.

The appellant filed a petition in the form of an ordinary declaration in an action at law styled as such by the pleader, and which will hereafter be so referred to, by which it sought a writ of mandamus to compel the appellee to issue it a warrant for the amount of an indebtedness alleged to be due it by Bass & Co. The declaration alleged that Bass & Co. is indebted to the appellant in the sum of two thousand seventy-four dollars for two carloads of "feed for mules" sold by it to them, with interest thereon; that Bass & Co. completed their contract to build the highway, and that...