Mobile County v. Maddox

• Decision Date: 04 November 1915
• Docket Number: 1 Div. 878
• Parties: MOBILE COUNTY v. MADDOX.
• Court: Alabama Supreme Court

70 So. 259

195 Ala. 336

MOBILE COUNTY v. MADDOX.

1 Div. 878

Supreme Court of Alabama

November 4, 1915

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action by Lizzie Maddox against Mobile County. From a judgment for plaintiff, defendant appeals. Transferred from the Court of Appeals under section 6, p. 449, Acts of 1911. Reversed and remanded.

Sullivan & Stallworth, of Mobile, for appellant.

Webb &amp McAlpine, of Mobile, for appellee.

McCLELLAN J.

The appellee sought to recover of the county of Mobile damages for injuries received by her in consequence of a defective or outworn highway bridge. Code, § 3038, provides:

"When a bridge or causeway has been erected by contract with the county commissioners, with a guaranty, by bond or otherwise, that it shall continue safe for the passage of travelers and other persons for a stipulated time, any person injured, in person or property, before the expiration of such period, by a defect in such bridge or causeway, may sue in his own name on the bond or other guaranty, and recover damages for the injury; and if no guaranty has been taken, or the period has expired, may sue and recover damages of the county."

The liability of a county for damages for injuries resulting to travelers on its highways from defective bridges is purely statutory, and without a statute imposing the liability there would be none. Lee County v. Yarbrough, 85 Ala. 590 5 So. 341, among others.

The board of revenue of Mobile county, corresponding in nature and function to the courts of county commissioners in other counties in this state, is a court of record. Code, §§ 3306 3314, 3321; Crenshaw County v. Sikes, 113 Ala. 626, 21 So. 135. Being a court of record, the sole, exclusive source of evidence of its acts or action is an authoritative record thereof, written, of course. Crenshaw County v. Sikes, supra; Speed v. Cocke, 57 Ala. 216. See, also, Perryman v. Greenville, 51 Ala. 507; Greenville v. Greenville Water Works, 125 Ala. 643, 27 So. 764; City of Birmingham v. Chesnutt, 161 Ala. 253, 257, 258, 49 So. 813. It was said in Speed v. Cocke, supra:

"A court of record speaks only through its records. A written memorial is the only evidence which other courts can receive of its proceedings, whether it is the exercise of judicial power, or of mere ministerial authority and duty."

Treating the question whether the writ of mandamus should run to compel a judge of probate to issue a county warrant for a claim against his county, this court, in Smith v. McCutchen, 146 Ala. 455, 459, 460, 41 So. 619, gave emphatic expression to the reason and to the application of the principle announced in Speed v. Cocke, supra.

A marked feature of the opinion of Smith v. McCutchen is that denying to the judge of probate any right, power, or authority, by his own unsupported act, to supplement, or to impart efficacy or validity to, the incomplete or deficient action of the county body. That body, as such, must exercise the power and authority conferred on, and required of, it by law; and the act of a judge of probate in issuing a warrant for a claim against the county is impotent, in any degree or in any event, to invest incomplete action of the county body with validity or legal force. Upon such an act, if it is not supported by the proper authority, viz., appropriate, certain, record-shown action of the county body on the matter, no implication or ratification by the county body can be rested, or from it derived.

The liability of the county of Mobile for the injury to the plaintiff depended, in one phase, upon the conditions thereto fixed by the statute before quoted. It is asserted that the contract for the erection of the bridge in...