Scarbrough v. Watson

• Decision Date: 09 June 1904
• Citation: 140 Ala. 349,37 So. 281
• Court: Alabama Supreme Court
• Parties: SCARBROUGH ET AL., COUNTY COM'RS, v. WATSON.

37 So. 281

140 Ala. 349

SCARBROUGH ET AL., COUNTY COM'RS, v. WATSON.

Supreme Court of Alabama

June 9, 1904

Appeal from Circuit Court, Calhoun County; John Pelham, Judge.

Petition by I. E. Watson against W. A. Scarbrough and others, as commissioners of Calhoun county, for writ of mandamus. From a judgment for petitioner, respondents appeal. Reversed.

This proceeding was instituted by filing a petition averring that petitioner was clerk of the circuit court of Calhoun county that he had presented to the commissioners' court of said county an itemized account for $104 for copying the minutes of the circuit court for the year 1902, and that said account had been disallowed. The petitioner prayed for a writ of mandamus to be issued, addressed to the respondents, who were members of the court of county commissioners of Calhoun county, commanding them to pay or allow said claim, and to issue a warrant in favor of said petitioner for the amount of $104. There was a rule nisi issued upon the filing of the petition. The respondents demurred to the petition, assigning several grounds, which set up in substance that the petitioner had an adequate remedy for the collection of his claim by suit against the county, and, further, that it was not shown that the petitioner was entitled to a warrant for the amount claimed.

Knox Acker & Blackmon, for appellants, J. J. Willett, for appellee.

McCLELLAN C.J.

A claim against a county cannot be sued and recovered on unless it has been presented to the commissioners' court and been disallowed by that body, and the complaint must aver such presentation and disallowance. Code 1896, § 13; Shinbone v. Randolph, 56 Ala. 183; Schroeder v. Colbert County, 66 Ala. 137. Recovery cannot be had in such cases on the common counts, no averment of presentation and disallowance being added. Hence it is that the case of Marengo County v. Lyles, 101 Ala. 423, 12 So. 412 was properly decided; but what is there said as to plaintiff's remedy being by mandamus is a dictum unnecessary to the decision of the case, and unsound, unless the question was there affected by a local statute not mentioned in the report or opinion. The remedy in such case is by action under section 13 of the Code of 1896, and it is plain, adequate, and complete. The claim involved in this proceeding is of the class dealt with by that statute. The petitioner had this plain, adequate, and complete remedy by action...