Newton County Bank v. Perry County

• Decision Date: 14 April 1924
• Docket Number: 23866
• Citation: 99 So. 513,135 Miss. 129
• Court: Mississippi Supreme Court
• Parties: NEWTON COUNTY BANK v. PERRY COUNTY et al. [*]

99 So. 513

135 Miss. 129

NEWTON COUNTY BANK v. PERRY COUNTY et al. ^[*]

No. 23866

Supreme Court of Mississippi

April 14, 1924

Division A

(Division A.) January 1, 1920

1 COUNTIES. Requisites for order allowing claim by board of supervisors, stated.

Under section 3714, Hemingway's Code (section 341, Code 1906) an order of the board of supervisors allowing a claim is not a valid judgment unless it specifies the amount allowed, the page and section of law under which the allowance is made, and on what account.

2 COUNTIES. Claim allowed under void order of board of supervisors not res judicata.

A claim allowed under a void order of the board of supervisors is not res adjudicata, and the claim may be heard upon its merits by the court and recovery denied or granted against the county upon the evidence.

3 COUNTIES. Showing claim against county for estimating timber for assessment disallowed for incorrectness, competent in suit against county; evidence held insufficient to sustain decree for plaintiff in suit against county for estimating timber for assessment.

In a suit against the county to recover for services rendered in estimating timber subject to assessment for taxes, it was competent to show the estimate substantially incorrect and disallow the claim for that reason. Held, proof here was sufficient to support finding of fact by the court.

HON. V. A. GRIFFITH, Chancellor.

APPEAL from chancery court of Perry county, HON. V. A. GRIFFITH, Chancellor.

Suit by the Newton County Bank against Perry County and another. From a decree dismissing the bill, plaintiff appeals. Affirmed.

Judgment affirmed.

Byrd & Byrd and Flowers & Brown, for appellant.

We base our right to a reversal of this case upon the following propositions: (1) The order of the board of supervisors made and entered at the October, 1920, meeting of said board was in fact and in law a judgment accepting the estimate presented by Bassett and that being a judgment it was and is res adjudicata of all questions which could have been raised at that time, that is to say, as to all questions of the correctness of the estimate, the questions as to who did the actual estimating, the questions as to what lands were estimated and whether or not they were the actual lands intended by the board of supervisors to be estimated, and, in fact all questions as to whether or not Bassett lived up to his contract. And further, that being a judgment no attack could be made on it in this suit because to do so would be making a collateral attack on a judgment of a court of competent jurisdiction, and no testimony is admissible or should have been admitted going behind said judgment or attacking its regularity or the propriety of entering it. (All of the evidence attacking the judgment or attempting to go behind the judgment having been objected to by the appellant and admitted by the court over its objections).

Now this court has held, on numerous occasions, that in similar orders, the word "receive" is the same as "accept," and that receive as used in such an order does not mean simply to receive for the purpose of filing or actual manual possession, but means accepting for all purposes. Mills, et al., v. Scott, et al., 62 Miss. 525; Gwynn v. Richardson, et al., 3 So. 579; 33 Cyc., page 1573; 7 Words and Phrases, 1st Series, under "Receive."

It is, we submit, plain that this order fixes the liability, and because it does not recite the exact amount it does not become any less a judgment. It is similar, if the court please, to a judgment of the circuit court when a judgment is given on the question of liability and a writ of inquiry is awarded to assess the damages. No one would say, we presume, that the judgment of the circuit court as to liability is void or not a judgment because the amount of damages is left out.

It is universal that all things are presumed to have been litigated or adjudicated in a cause which could have been litigated therein. The board of supervisors was, in this matter, a court of competent jurisdiction, with full jurisdiction over the parties and the subject-matter. This court has held, numbers of times, that the functions of a board of supervisors in passing upon matters of this kind are judicial. George County v. Bufkin, 78 So. 781; Arthur, Clerk, etc., v. Adam & Speed, 49 Miss. 404. In all these cases quoted, and the cases and text books cited in them, the boards of supervisors are held to be courts and their judgments, like that of any other court, are final until vacated or reversed, and they cannot be collaterally attacked.

Now, when Bassett's estimate was filed and the board passed an order receiving the same, that order was a judgment and as such is final and conclusive, there having been no appeal therefrom. 15 R. C. L. 877, Judgments; Land v. Kiern, 52 Miss. 341.

II. Conceding, but not admitting by any means, that the question of the correctness of the estimate could be gone into, then the defendants fail, by their evidence, to show that the contract was not complied with by Bassett in every particular.

III. Having accepted the estimate and accepted the benefits accruing thereunder the county is estopped to deny its liability under the contract with Bassett, and having held out to the world that said estimate was accepted and received by it the county cannot now, after the rights of innocent parties have intervened, repudiate that acceptance.

The court says that Bassett was paid all that was due him, yet it says in the same breath that this is not a quantum meruit proposition. In other words, it paid him on a quantum meruit basis, which was all right, but if he wants the balance on a quantum meruit that rule does not apply. That seems to us to be peculiar logic. Under this contract, if Bassett was entitled to receive the eighteen hundred and odd dollars which he was paid, then he was entitled to the balance shown by his estimate to be due. The acreage for which he was paid was shown by the estimate, as was the rest of the acreage, the amount of timber for which he was paid was shown by the estimate as was the total amount estimated, and in the order approving the part for which he was paid there is no exception, qualification, or statement of any kind rejecting any of the estimate but accepting the whole. That being true, if it was accepted, and by paying him therefor the county said it was accepted, the county owed him for the whole thing under its contract and cannot, by paying for a part of the whole which it accepted, shuffle off its responsibility.

We respectfully submit that the chancellor erred in his decision in applying the law to the facts.

C. C. Smith and N.C. Hill, for appellees.

The facts and evidence, both oral and written, prove that the county, not only did not get a correct estimate of the number of feet of timber and the quality thereof on "each acre of land in said county," but it did not get a correct estimate of any of it.

Appellant claims that the order of the board made when said alleged estimate was filed, was an order and judgment in favor of Bassett and obligated it to pay him therefor, regardless of whether the estimate was true or untrue,...