Gully v. Bridges

• Decision Date: 24 September 1934
• Docket Number: 31242
• Court: Mississippi Supreme Court
• Parties: GULLY, STATE TAX COLLECTOR, v. BRIDGES et al

156 So. 511

170 Miss. 891

GULLY, STATE TAX COLLECTOR, v. BRIDGES et al

No. 31242

Supreme Court of Mississippi

September 24, 1934

Division B

Suggestion Of Error Overruled October 22, 1934.

APPEAL from chancery court of Lamar county HON. T. PRICE DALE Chancellor.

Bill by J. B. Gully, state tax collector, against L. C. Bridges and others. From a decree dismissing the bill complainant appeals. Reversed and remanded.

Reversed and remanded.

J. H. Currie and J. C. Floyd, both of Meridian, for appellant.

There can be no doubt that if the averments of the original bill are true, and they must be taken as true for the purposes of this demurrer, that the defendant, L. C. Bridges, is liable for the money which he unlawfully received.

Howe v. State, 53 Miss. 57.

Even if this were not true, if the bill is good as to any of the defendants, the general demurrer must be overruled as to all.

Section 305, Griffith's Chancery Practice; Wherry v. Latimer, 103 Miss. 529, 60 So. 563.

Section 3178 of the Mississippi Code of 1930 provides the only semblance of authority we have been able to find for the payment of the traveling expenses of the attorney for the board of supervisors. This statute has to do with a hearing before the tax commission when there is dissatisfaction over changes made in the assessment rolls by the tax commission, and provides for a hearing before the commission to be attended by the members of the board, its attorney, the tax assessor, and the chancery clerk, and provides that "the compensation and expenses, if any, shall be paid by the board of supervisors of the county affected.

We do not find that this court has passed on the specific question heretofore, but it appears to us that the question as a matter of principle was settled in the case of Miller v. Tucker, 142 Miss. 146, 105 So. 774, where this court refused to sanction the allowance of the traveling expenses of the county health officer. We can see no distinction between the question there and the one here presented.

J. A. Covington, Jr., of Meridian, for appellees.

The sole question involved in this appeal appears to be whether or not the bill in itself is sufficient to charge the defendants or whether or not the bill on its face states a good cause of action against the defendants.

There is a vast difference between a statement of the facts relied on and a conclusion of the pleader concerning the facts.

Griffith Mississippi Chancery Practice, 166.

When a material fact necessary to a recovery is omitted from a bill it does not state a cause of action.

Griffith's Mississippi Chancery Practice, 167, 179.

It is not sufficient for the bill to simply state that the allowances were illegal and unauthorized, constituted a misappropriation of funds and that the purposes for which the funds were allowed were unlawful and illegal. These are mere conclusions of the pleader and there is no allegation of the actual facts to support these conclusions.

The bill does not say as a fact that the county attorney received the money without incurring any expenses at all.

There are many allowances not specifically mentioned in the statutes which are legal and proper out of the very nature of things.

Miller v. Tucker, 105 So. 774.

OPINION

Anderson, J.

Appellant, the state tax collector, filed the bill in this case in the chancery court of Lamar county against appellees, L. C. Bridges, attorney for the board of supervisors for that county, and the members of the board of supervisors of the county and the sureties on their official bonds, the United States Fidelity & Guaranty Company, charging that the board of supervisors unlawfully allowed, during the years 1929 and 1930, to the county attorney the sum of three hundred seventy-eight dollars and fifty-five cents, expenses incurred by him in performing the duties of his office, and seeking to hold appellees jointly and severally liable therefor. Appellees interposed a general demurrer to the bill, which was sustained by the court, and, appellant declining to amend, a final decree was entered dismissing the bill, from which decree appellant prosecutes this appeal.

The bill alleged that the board of supervisors during the years 1929 and 1930 allowed and paid its attorney Bridges out of the general funds of the county three hundred seventy-eight dollars and fifty-five cents, the aggregate amount of traveling expenses incurred by him in the performance of his duties as such attorney in making eight trips to Jackson, one to Hattiesburg, and one to Meridian, and that there was no authority of law for such allowances; therefore they were illegal and appellant was entitled to recover them back for the county, plus interest and the statutory commission of twenty per cent.

Appellees defended upon the ground that the allowances were authorized by law, and whether authorized or not appellant's bill failed to properly charge the necessary facts to constitute liability. We will consider those...