National Surety Co. v. Board of Sup'rs of Holmes County

• Court: Mississippi Supreme Court
• Writing for the Court: HOLDEN, J.
• Citation: National Surety Co. v. Board of Sup'rs of Holmes County, 81 So. 792, 120 Miss. 565 (Miss. 1919)
• Decision Date: 26 May 1919
• Docket Number: 20678
• Parties: NATIONAL SURETY CO. v. BOARD OF SUPERVISORS OF HOLMES COUNTY

81 So. 792

120 Miss. 565

NATIONAL SURETY CO. v. BOARD OF SUPERVISORS OF HOLMES COUNTY

No. 20678

Supreme Court of Mississippi

May 26, 1919

Division A

COUNTIES. Suit in name of board of supervisors. Statutes.

Boards of supervisors have had no uower to prosecute suits in their own name since November 1, 1892, the date when the former statute giving them this power was repealed. The provisions of the statute, Code 1906, Sections 309-310 (Hemingway's Code, sections 3682-3683), that suit shall not be brought by the county without the authority of the board of supervisors," can in no view be construed to mean that the board shall have the power to sue in its own name.

HON. A Y. WOODWARD, Chancellor.

APPEAL from the chancery court of Holmes county, HON. A. Y WOODWARD, Chancellor.

Suit by the Board of Supervisors of Holmes County against the National Surety Company, and others. From decree pro confesso and final decree for complainant, the surety company appeals.

The facts are fully stated in the opinion of the court.

Decree reversed, and bill dismissed.

R. H. &amp J. H. Thompson and Fulton Thompson, for appellant.

E. F. Noel and W. L. Dyer, for appellee.

OPINION

HOLDEN, J.

The board of supervisors of Holmes county as complainant filed its bill, in its own name, against the appellant, National Surety Company, and others, seeking to recover damages for breach of a contract to build and construct certain highways in supervisors' district No. 5 of said county. The bill of complaint purports to be for the benefit of the "improval highway district," of supervisors' district No. 5, in which the construction company failed to perform its contract in building said roads, the performance of which contract the appellant, National Surety Company, had guaranteed by its bond. Decree pro confesso and final were taken in favor of complainant, from which this appeal is prosecuted here.

Several serious questions are presented; but, inasmuch as a decision upon one ground will reverse the lower court and it appears probable the other questions will not arise again, we shall pass upon but one of the errors assigned by the appellant, and that is whether or not the board of supervisors of the county is without power to institute or maintain this suit in the name of the board. The complainant in the bill here being the board of supervisors of Holmes county for the benefit of a district therein, and not being a suit by the county, it must fail unless there be statutory authority, giving the board the power to sue by its name.

After a careful investigation of the statutes on that subject we have been unable to find any statute authorizing the board of supervisors to sue...