Fountain v. State

• Decision Date: 12 June 1924
• Docket Number: 1 Div. 308.
• Parties: FOUNTAIN, JUDGE OF PROBATE, ET AL. v. STATE EX REL. HYBART ET AL.
• Court: Alabama Supreme Court

100 So. 892

211 Ala. 586

FOUNTAIN, JUDGE OF PROBATE, ET AL. v. STATE EX REL. HYBART ET AL.

1 Div. 308.

Supreme Court of Alabama

June 12, 1924

Rehearing Denied June 30, 1924.

Appeal from Circuit Court, Monroe County; John D. Leigh, Judge.

Petition for mandamus by C. L. Hybart and another against M. Mc. Fountain, as Judge of Probate and ex officio president of the Board of Revenue of Monroe County, and others. From a judgment granting the writ, respondents appeal. Affirmed.

The original petition was filed on August 16, 1922, by the appellees, Hybart and Hare, against M. Mc. Fountain, as judge of probate, and as ex officio president of the board of revenue of Monroe county. It showed that petitioners were employed by said board of revenue as attorneys to perform professional services in connection with the calling of a bond issue election and the proceedings thereunder for the issue and sale of bonds; that petitioners performed said services, and on May 9, 1922, presented and filed with said board their itemized and sworn claim for compensation therefor, in the sum of $2,500; that on said date, at a regular session of the board, said claim was audited and allowed, and three of the four members of the board indorsed on said claim the word, "Allowed," and signed their names thereto; and that the said board thereupon adjourned sine die, and the term was closed. It was further shown that thereafter petitioners demanded of the respondent Fountain that he issue to them a warrant on the county treasurer directing him to pay to them the amount so allowed, but that he had refused to do so; and, further, that he had not registered petitioners' claim as required by sections 146 and 147 of the Code of Alabama. The prayer was for an alternative writ of mandamus, commanding the respondent to register petitioners' claim as required by law, and to forthwith issue to them a warrant upon the county treasurer for the amount allowed by the board.

On August 19, 1922, the alternative writ, reciting the above facts, was issued and duly served. On September 2, 1922, the petitioners amended their petition by alleging that respondent had failed to record on the minute book of the board within 90 days from the adjournment of said meeting of May 9th, as it was his duty to do, the acts and doings of the board thereat, and had failed to so record the allowance of said claim; and they amended the prayer appropriately to require respondent to record its allowance in the minutes, or on the minute book, of the board. This amendment was covered by the terms of the alternative writ, already issued, requiring respondent to so record.

Respondent's answer denied that the records or minutes of the board showed any allowance of petitioners' claim as alleged; that it had not been passed on or allowed; and denied his authority "to register said claim and issue said warrant."

Demurrer being sustained to this answer, respondent filed several successive answers, setting up in substance the following That petitioners' claim was personally presented to the board by F. W. Hare, one of the petitioners, and upon his advice, "and with practically no consideration and deliberation, the board of revenue voted three to one to allow said claim; that on the same date, and soon after the adjournment of said meeting of the board, respondent was advised by a member of said board that one of the members of said board, who had voted for allowing said claim, had considered the matter, and had reached the conclusion that he had acted too hastily in voting for the allowance of said claim, and desired to change his vote in order that the consideration of the claim might be continued to a subsequent meeting of the board in order that a proper investigation might be made by the board as to the reasonableness of the claim, and the propriety of allowing same for the amount claimed"; that under these conditions he did not record the proceeding, nor register the claim, nor issue a warrant therefor; that at a subsequent meeting said Hare appeared before the board and requested action on the claim, but none was taken; "but thereafter, on August 14, 1922, at a regular meeting of said board, said claim was taken up considered and formally disallowed"; that two members voted for and two against allowance, and respondent cast the deciding vote against it; and this action is set out fully on the minutes of the board of said meeting.

The answer admits that petitioner demanded of respondent that he do the several things sought to be compelled by the petitioner, before it was filed.

Demurrer was sustained to this answer, and, respondent declining to plead further, a peremptory writ was issued, and judgment was rendered thereon. Thereupon respondent appealed to the Supreme Court, and on that appeal (210 Ala. 51, 97 So. 59) the judgment and order of the circuit court was reversed on the ground that the relief sought operated upon the entire board of revenue, and required that all of its members be made parties respondent to the petition.

Thereupon petitioners amended their petition by making all the members of the board parties respondent, on August 23, 1923; and also by setting up the alleged proceeding of disallowance alleging ignorance of its existence until informed of it by respondent's answer denouncing it as void for want of jurisdiction, and praying that it be expunged from the records of said board of revenue.

The alternative writ was thereupon issued to the several respondents, and respondents Fountain, Carter, and Pearson moved to strike the amendment from the file on the grounds substantially: (1) That it effected a complete change of parties respondent; (2) that it presented an entire change of the cause of action; and (3) that it sought to bring within the cause for relief a matter of record which was not in existence when the original petition was filed.

This motion being overruled, a demurrer was filed to the amended petition, on various grounds which are stated in the opinion. This demurrer being overruled, the three respondents named above answered the writ, repeating the substance of the former answer; denying that there was any "formal employment" of petitioners in the matter of the bond issue, but admitting that they performed the services claimed for; asserting that after the discussion of the matter of the allowance of the claim between the two members of the board and the president, they agreed that it was improvident, and "that the proceedings of said board should not be made to show an allowance of said claim, but that the matter should be left open for further consideration."

The answer admits that demand was made upon Judge Fountain for the doing of the several things in issue, but denies that demand was made on the other members of the board, and denies that any demand was ever made on any of them to expunge the...