Humphreys Cty. v. Cashin.

• Decision Date: 01 January 1920
• Docket Number: 22110
• Citation: 128 Miss. 236,90 So. 838
• Court: Mississippi Supreme Court
• Parties: Humphreys County v. Cashin.

90 So. 838

128 Miss. 236

Humphreys County v. Cashin.

No. 22110

Supreme Court of Mississippi

January 1, 1920

1. STATES. Where statute permits state or subdivision thereof to be brought into court as litigant, it is subject to all rules of procedure.

Where the statute permits a state, or a subdivision thereof, to enter or to be brought into court as a litigant, it becomes subject, in the absence of a provision in the statute to the contrary, to all of the rules governing the procedure of the court in other cases.

2 VENUE. Plaintiff in civil action against county s entitled to change of venue for undue influence of defendant's board of supervisors.

The complainant in a civil action in which a county is the defendant is entitled to a change of venue under the provisions of section 712, Code of 1906 (section 491 Hemingway's Code), when it is made to appear that he cannot obtain a fair trial in the court wherein the cause is pending because of the undue influence of the president and members of the county's board of supervisors.

3. APPEAL AND ERROR. Where evidence is not in record, it will be presumed to sustain the petition on which change of venue was granted.

Where the evidence on which a change of venue was granted is not made a part of the record, the supreme court will presume on appeal that it sustained the allegations of the petition on which the change, was granted.

4 COUNTIES. Intention, of parties to contract must be gathered from words of an order entered in the minutes of the board of supervisors.

The intention of the parties to a contract evidenced by an order on the minutes of the board of supervisors must be gathered from the words therein used.

5. COUNTIES. What legal services were for which a claim was allowed must be determined alone from the account filed and the order of the supervisors.

Where a claim of an attorney for legal services against a county is presented to and allowed by its board of supervisors, what the services were for which payment was allowed must be determined alone from the account filed with and the order made thereon by the board of supervisors.

6 ACTION. Attorney's claims under contracts to represent county in certain litigation and subsequently in certain collection suits held separate and distinct causes of action.

Where the validity of a statute creating a new county is denied by a county, a part of whose original territory was embraced in the new county, and several actions at law have been instituted for the purpose of having the validity of the statute adjudicated, an order made by the new county's board of supervisors employing an attorney at law to represent the county in this litigation, and such other as might thereafter arise involving the validity of the said statute, and a subsequent order made by the same board of supervisors employing the same attorney to institute such suits as might be necessary to collect from the old county the new county's portion of the public fund due it by the old county under the act under which the new county was created, set forth separate and distinct contracts, and claims by the attorney for compensation for services rendered under each of the contracts constitute separate and distinct causes of action.

7. EVIDENCE. Opinions of attorneys at law of reasonable value of services are not conclusive of value.

In an action by an attorney to recover the reasonable, value of legal services rendered by him, the opinions of attorneys at law of the reasonable value thereof is admissible in evidence, but is not conclusive of the value of such services, that being a question which the jury should be permitted to decide from all of the evidence in the case relative thereto.

8. VENUE. Provision that chancery court to which venue is changed shall try the issue by jury is mandatory.

The provision of section 559, Code of 1906 (section 319, Hemingway's Code), that "the chancery court to which the venue is changed shall try the issue by a jury," is mandatory and deprived the chancery court to which the venue in the case has been changed of any discretion in granting or refusal of a trial by jury.

HON. E. N. THOMAS, Chancellor.

Bill by J. M. Cashin against Humphreys County. Directed verdict and decree for the plaintiff, and the defendant appeals. Reversed and remanded.

N. W. Sumrall, Frank E. Everett and J. F. Jones, for appellant. Henry, Canizaro & Henry, and J. M. Cashin, for appellees.

SMITH C. J., delivered the opinion of the court.

The appellee exhibited an original bill of complaint against the appellant in the chancery court of Humphreys county, praying for a recovery against the appellant for the value of certain legal services claimed to have been rendered by him to it. The appellant by answer denied the appellee's right to recover, and on the application of the appellee a trial by a jury followed by a change of venue to Warren county was ordered. The evidence on which the change of venue was granted was not made a part of the record. In due course the cause came on for trial in the court below, and at the close of the evidence the court directed the jury to return a verdict for the appellee for three thousand five hundred dollars, the amount sued for, and interest thereon, and there was a verdict and decree accordingly.

The case disclosed by the record is, in substance, as follows: Humphreys county, which was created by chapter 348, Laws of 1918, is composed of what was formerly parts of Holmes, Sharkey, Sunflower, Yazoo, and Washington counties, the validity of which statute and the legal existence of Humphreys county was not admitted by any of the counties out of whose territory it was formed until these questions were settled in the affirmative by this court in State ex rel. Collins, Attorney General, v. Jackson et al., 119 Miss. 727, 81 So. 1. On July 9, 1918, there were pending two or more lawsuits in which one of the questions to be determined was the legality of the creation of Humphreys county, and in order that the county's interests might be protected therein its board of supervisors made a contract with the appellee and W. S. Knotts, attorneys at law, 'for that purpose, evidenced by the following order entered on its minutes:

"In the Matter of Litigation Involving the Legality of the Creation of Humphreys County.

"Where it appears to the board that the quo warranto proceedings have been filed in the circuit court of Yazoo county, Miss., by J. H. Howie, district attorney, one upon the relation of W. H. Downer against H. R. Ross, formerly a member of the board of supervisors of Yazoo county, Miss., who, it is alleged, continues to exercise the functions of said office without authority, because he resides in Humphreys county, and said Downer has been elected in his place, and the other by said district attorney against S. S. Hairston, justice of the peace of Humphreys county, to oust said justice of the peace upon the ground that Humphreys county has no lawful or legal existence.

"And it appearing to the board that the purpose of these suits is to have the court adjudge the creation of Humphreys county to be void, and that it is necessary and proper that the interest of Humphreys county should be protected in said suits, and that in the opinion of the board it is advisable and necessary that special counsel should be employed, it is therefore ordered by the board that W. S. Knotts and J. M. Cashing be, and they are hereby, employed as special counsel for and in behalf of Humphreys county, to take such steps as they may deem proper in said suits and in any other litigation that may be instituted attacking the validity of the creation of Humphreys county, and they are also authorized to institute such suits and proceedings as they may deem necessary and proper to establish the legality and validity of the creation and organization of Humphreys county. For their services in said litigation they shall be paid by Humphreys county such fees and compensation as may be reasonable and proper. They are also authorized to request the aid and assistance of the district attorney of the Fourth circuit court district and the county prosecuting attorney of Humphreys county in said litigation to any extent their services may be desired."

The two actions at law referred to in this order were disposed of without the validity vel non of the creation of Humphreys county being determined, and thereafter, on August 9, 1918, another order was entered by the appellant's board of supervisors as follows:

"In the Matter of the Collection from Yazoo County, Miss., of the Funds of Said County, Owing to Humphreys County, Miss., under the Provisions of Section 8 of Chapter 348 of the Laws of 1918.

"It having been made to appear to the board that the board of supervisors of Yazoo county refuse to recognize the existence of Humphreys county and will refuse to enter an order directing the treasurer of Yazoo county to pay over to the treasurer of Humphreys county such proportionate part of all funds as were in his hands as treasurer of said county on the date of the organization of Humphreys county as the entire valuation of property in the territory taken from Yazoo county and embraced in Humphreys county bears to the entire valuation of property in Yazoo county, as shown by the assessment rolls of the county for the fiscal year 1917, sixteenth section school funds excepted, as required by section 8 of chapter 348 of the Laws of 1918, it is ordered by the board that W. S. Knotts and J. M. Cashin special counsel heretofore employed by this board, be, and they are hereby, authorized to institute such suits or proceedings as may in their judgment be necessary and proper to enforce the rights and demands of Humphreys county to...