Foote v. Board of Supervisors of Noxubee County
| Decision Date | 28 October 1889 |
| Citation | 6 So. 612,67 Miss. 156 |
| Court | Mississippi Supreme Court |
| Parties | H. W. FOOTE v. BOARD OF SUPERVISORS OF NOXUBEE COUNTY |
FROM the circuit court of Noxubee county, HON. S. H. TERRAL Judge.
One J C. Gilmore, having contracted with the board of supervisors of Noxubee county for the building of two bridges, obtained from appellant Foote the money needed in the prosecution of the work, and to secure appellant gave him written orders on the board of supervisors for the issuance to him of warrants for the amounts specified out of the sums to be allowed for the building of the bridges.
These orders were presented by appellant to the clerk of the board of supervisors, who made a memorandum of them in a book kept for that purpose. The bridges were completed according to contract by Gilmore, and were accepted by the board of supervisors, but before the acceptance and issuance of any warrants therefor Gilmore died.
Appellant presented the aforesaid orders to the board of supervisors and demanded the allowance and issuance to him of warrants for the sums specified in the orders, but the board refused the demand, alleging as a reason that the administrator ad colligendum of Gilmore had made demand for the allowance of the entire sums due under the contracts, and that certain persons employed on the work by Gilmore had served notice that they claimed liens upon the fund for labor performed and material furnished. In view of these several demands, and the doubt entertained as to who was entitled to the warrants, the board refused to issue them to any one of the claimants.
Appellant thereupon filed this petition in the circuit court, seeking by mandamus to compel the board of supervisors to issue warrants in his favor for the amounts specified in the orders.
Issue was joined, and the cause submitted to the court upon an agreed state of facts for trial without a jury. It was further agreed that the only issues to be tried were, [1] whether the petitioner had such title from Gilmore as gave him the right to demand the issuance to him of the warrants in payment of the orders, and [2] whether the petitioner had an adequate remedy by ordinary suit at law.
The court denied the petition for mandamus and dismissed the cause, and the petitioner appeals.
Affirmed.
Foote & Foote, for appellant.
The contractor parted with his right to the warrants by giving plaintiff the orders for them. It is clear the petitioner had a right to demand the warrants, and as the board refused to issue them, his only remedy was by mandamus.
Appellant did not have a remedy at law. He did not have a transfer of Gilmore's contract, nor had he any right to make a moneyed demand against the county, for he had rendered it no service. All he had any claim to was the warrants, for which he had paid Gilmore.
The granting of a writ of mandamus is like the granting of an injunction; it rests in the sound discretion of the judge in view of all the facts. 22 N.Y. 114; 48 Ala. 160; ...
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