Marengo County v. Barley

• Decision Date: 04 January 1923
• Docket Number: 2 Div. 807,807a.
• Citation: 96 So. 753,209 Ala. 663
• Parties: MARENGO COUNTY v. BARLEY ET AL.
• Court: Alabama Supreme Court

96 So. 753

209 Ala. 663

MARENGO COUNTY v. BARLEY ET AL.

2 Div. 807, 807a.

Supreme Court of Alabama

January 4, 1923

Explanatory Opinion June 18, 1923.

Appeal from Circuit Court, Marengo County; R.I. Jones, Judge.

Bill by Marengo County against Eugene A. Barley and the Marengo County Bank, as county depository. From the decree rendered complainant and respondent Barley appeal. Corrected and affirmed on direct appeal; reversed and rendered on cross-appeal.

I. I Canterbury, of Linden, and Ben F. Elmore, of Demopolis, for appellant.

Wm Cunninghame, of Linden, and Henry McDaniel, of Demopolis, for appellee.

THOMAS J.

1. The commissioners' court had the authority to issue interest-bearing warrants. Board of Revenue v Merrill, 193 Ala. 521, 68 So. 971; Town of Eutaw v. Coleman, 189 Ala. 64, 66 So. 464; Littlejohn v. Littlejohn, 95 Ala. 614, 71 So. 448. In the instant case, it seems that the claims were allowed with interest and warrants were ordered to be issued with interest, and the warrants were so issued; but the probate judge, in entering and recording the minutes, omitted interest from said minutes. The court of county commissioners exercises judicial, quasi legislative, and executive or administrative powers, and as to the auditing and allowance of claims against the county its action is executive or administrative and not judicial. Commissioners' Court v. Moore, 53 Ala. 25; Jeffersonian Pub. Co. v. Hilliard, 105 Ala. 576, 17 So. 112. It would therefore appear that it has the authority to correct the allowance or rejection of claims without the formality of a motion nunc pro tunc, a question, however, we need not decide, as there was a motion nunc pro tunc granted on record or quasi-record evidence.

The commissioners' court, independent of section 4140 of the Code, which seems to apply to circuit courts or courts of like jurisdiction, has the inherent power to amend its records so as to make them speak the truth. Section 4139 of the Code of 1907. "It was competent for the commissioners' court, as it is for every court of record, to amend its record nunc pro tunc, if there be matter of record authorizing the amendment." Commissioners' Court v. Hearne, 59 Ala. 371; Mitchell v. Commissioners' Court of Coosa County, 116 Ala. 652, 22 So. 993, and cases cited. Nor do we find any limitation as to the time within which this may be done, as section 4140 does not apply to the commissioners' court. Moreover, the three years mentioned in said section has been held not to be one of limitation. Sartor v. Bank, 29 Ala. 353.

2. It is conceded, and the record establishes, that the Smyley warrant was made for a sum in excess of its true amount, and to the extent of $104.18. The bill charges such to have been the fact, and respondent in pleadings and by agreement of counsel admits the same to be true. It is averred that $104.18 was added to the warrant by way of compensation for the necessary delay in its collection, or as difference between the cash and credit price on sales as made and the cost of transportation to a distant point in the county; and such fact was within the knowledge or brought to the notice of a commissioner of the county while in the discharge of his duty as such official; that when the allowance was made it was with a knowledge of the excess. This was not the due observance of section 147 of the Code, in proof of and allowance of a just claim against the county to the extent of the extra allowance of $104.18 to the Smyley bill. Its payment may be duly resisted by the county as to such excess. Converse Bridge Co. v. Geneva County, 168 Ala. 432 453, 53 So. 196. The decree of the trial court is in error in the allowance of this item in the sum of $409.93, and should have been for the amount of $305.75. The approval of the claim by the county authorities charged with such duty can only...