Noxubee County v. Long

• Decision Date: 16 November 1925
• Docket Number: 21941
• Citation: 141 Miss. 72,106 So. 83
• Court: Mississippi Supreme Court
• Parties: NOXUBEE COUNTY v. LONG et al. [*]

106 So. 83

141 Miss. 72

NOXUBEE COUNTY v. LONG et al. ^[*]

No. 21941

Supreme Court of Mississippi

November 16, 1925

(In Banc.).

1 HIGHWAYS. Abandonment of road held shown by minutes of board of supervisors of highways, reciting orders appointing road overseers.

Minutes of board of supervisors of highways for each of four successive years, showing orders appointing road overseers for various of the county roads, reciting, "Road Link No. 11 discontinued," and as to other roads, other than those for which appointment was made, reciting, "Road Link No. ---No appointment," held to show abandonment of No. 11.

2 COUNTIES. Enough that by fair and reasonable interpretation meaning of minuted of boards of supervisors ascertainable.

Minutes of boards of supervisors of highways, through which only can they act, will be looked on with indulgence, and though unskillfully drawn, if by fair and reasonable interpretation their meaning can be ascertained, they are sufficient.

3. APPEAL AND ERROR. Case may not on appeal be transformed into a different one from that in trial court.

The supreme court being one of appeal will not permit the case as presented to trial court to be transformed into an entirely different one on appeal.

4. ATTORNEY AND CLIENT. Admission of defendant's counsel held within scope of declaration.

Admission of counsel for defendant county, in action for damages for abandonment of highway, that the road had been abandoned held, relative to its being binding on defendant, within the scope of the declaration.

5. ATTORNEY AND CLIENT. County is bound by admissions of counsel. County when sued, as expressly authorized by statute, stands in court like any other litigant, and is bound by admissions and stipulations of attorneys touching the action to the same extent that an individual would be bound.

ETHRIDGE J., dissenting.

HON. J I. STURDIVANT, Judge.

APPEAL from circuit court of Noxubee county, HON. J. I. STURDIVANT, Judge.

Action by J. R. Long and others against Noxubee county. Judgment for plaintiffs, and defendant appeals. Affirmed.

Affirmed.

Dent & Lucas and Jacobson & Brooks, for appellant.

I. There was no abandonment of the road, because there was no order duly passed and spread upon the minutes of the board, looking to an abandonment of the public road, and in the absence of an order looking solely to this end, there can be no legal abandonment, for which this suit can be maintained. Smith v. Board of Supervisors of Tallahatchie County, 124 Miss. 417; Adams v. Bank, 103 Miss. 144; Jefferson County v. Grafton, 74 Miss. 434; Boutwell v. Board of Supervisors, 91. So. 12; Amite County v. Mills, 138 Miss. 222, 102 So. 465; Mangum v. Smith County, 127 Miss. 192; Bridges & Hill v. Board of Supervisors of Clay County, 58 Miss. 817; 11 Cyc. of Law and Procedure, pages 396-401.

There is no theory upon which it can be held that the record shows an abandonment. The appellee never contended, and does not now, that there was ever an order passed and spread upon its minutes by the board of supervisors. It contends that, in the matter of appointing road overseers on the road docket--not a part of the minutes--that no overseer was appointed for this road, and that opposite this road, number eleven by name, is marked this word, "Discontinued." They argue and contend that while this does not of itself discontinue the road, it is of evidential value of a corroborative nature that it was done. They argue that having failed to appoint an overseer of a road, the county would be estopped from saying that the road had not been legally abandoned. See Mills v. Amite County, supra.

A discontinuance is not abandonment within the "damage" meaning of section 17 of the Constitution. 1 words and Phrases (Second Series), page 3; Hicks v. Steigleman, 49 Miss. 377.

We contend further that the board of supervisors, being a court of limited special jurisdiction, has no implicatory powers and nothing will be presumed, and as to every subject it handles that all jurisdictional facts must affirmatively appear on the record, and in their absence, even the order itself, if passed, would be void and of no effect. Boutwell v. Board of Supervisors, 91 So. 14; Adams v. Bank, 103 Miss. 744; Craft v. Board of Supervisors of DeSoto County, 79 Miss. 618; Sullivan v. LaFayette County, 58 Miss. 70; Hinton v. Perry County, 84 Miss. 546; Grignon v. Aston, 11 L. Fad. (2nd Ed.), at page 340; 23 Cyc., page 1082.

The court may be somewhat confused about the admission of counsel to the effect that the road was abandoned. Not that we think this is necessary, but in the motion for a new trial the affidavits of both the trial attorneys were inserted therein. That witnesses, including members of the board, would not be permitted to testify as to what order the board passed, which was not placed on the minutes, was decided in Smith v. Tallahatchie County, 124 Miss. 36. Certainly, if the board or officers could not testify about the matter, then the trial attorney under a misapprehension could not admit something as having happened when it does not appear on the minutes.

Admissions by counsel or by agent of principals in order to be binding can only extend to the matter in controversy. There can be no liability by implication. Nothing can be read into the admission by implication. The sole question herein was the question as to whether Noxubee county by an "unrecorded minute" of the supervisors had made itself liable to an individual for abandonment of a road. This was denied. The plaintiff contended that while the road had been abandoned in fact, that the record of abandonment had never been placed upon the minutes. The defendant when asked by the court, "Do you deny it?" said "No, we admit." "Admit what?" "Admit the matter plead by the declaration. We admit that the road, if abandoned, was abandoned in just that way." That is, that the order was agreed upon, but never put on the minutes of the board of supervisors, and, consequently, no liability was incurred, and no case is before this court, and no case was before that court at that time. See Cook v. Whitfield, 41. Miss. 541; 16 Cyc. of Law, "Evidence," page 1042; Corley v. Bryant, 19 R. I. 404, 35 A. 309.

We contend that these admissions made by us were never made with any idea, except as to the matters and issues then before the court, as stated in the declaration. It would not have been logical and consistent to have gone further.

Can the Longs after leading the county on with a declaration, bristling with non-recoverable allegations, proceeding upon a theory crosswise with the law, secure an admission as to the truth of their facts which make out no case, and then be heard to say for the first time in this court: "It is true my declaration stated no cause of action, and it is true that you admitted facts upon which I could not recover; yet, I think the admission must be construed to mean something not then before the court, and not then in controversy." This would indeed be an anomalous situation. An analysis of appellees' contention leaves them in just this situation.

C. G. Richardson, Britton & Sherrod and Baskin, Miller & Wilbourn, for appellees.

A county is liable for the abandonment of a public road where damage has resulted therefrom to the landowner. A claim for the damages for the abandonment of a road may be presented to the board of supervisors by the landowner who contends that he is damaged thereby, and that such damage may be considered and allowed by the board or may be disallowed.

Where the claim is disallowed, after presentation to the board, there is a right in the landowner to sue for the damages that he claims have resulted to him by reason of the abandonment of the public road. It is not disputed, and cannot be, that these appellees presented their claim to the board, and they proved by the record, without contradiction, that such claim was presented and disallowed by the board of supervisors by an order on their minutes. The appellees had the right, therefore, to sue the county and present their claim under the laws of the state of Mississippi. The county thereby became a litigant in court and was entitled to appear and authorized to appear by counsel. Sections 309 and 312, Code of 1906. As a litigant in court, the county has no less and no greater rights than any other litigant.

The courts of the land are under the duty to recognize counsel who appear on behalf of a county or state or municipality or the United States Government when any of them are before the court as a litigant. All matters of pleading and procedure are indentically the same. No municipality, county, state and not even the United States can exercise the privilege and duty in court, as a litigant through counsel, and not be bound to the same extent, character and degree that any other litigant would be bound by the pleadings and by the admissions of counsel, and by the character of instructions asked by or at the instance of the municipality, county, state or United States. Scarborough v. Harrison Naval Stores, 95 Miss. 497, 52 So. 143. The rule is that a stipulation made by an attorney in respect to a pending cause applies to a stipulation made by an attorney of a county. Lockwood v. Blackhawk County, 34 Iowa 235.

We submit, therefore, that the county of Noxubee cannot complain of the action of the lower court in overruling its motion for a new trial on this record.

The case, however, does not rest entirely upon the fact that the county appeared in court through counsel and conceded the abandonment of the road and tried the case on that theory. There are four orders from the minutes of the board of supervisors exhibited with the declaration, showing the abandonment of the road by...