De Soto County v. Wood

• Decision Date: 23 April 1928
• Docket Number: 27030
• Citation: 116 So. 738,150 Miss. 432
• Court: Mississippi Supreme Court
• Parties: DE SOTO COUNTY v. WOOD. [*]

116 So. 738

150 Miss. 432

DE SOTO COUNTY v. WOOD. ^[*]

No. 27030

Supreme Court of Mississippi

April 23, 1928

Division A

Suggestion of Error Overruled May 14, 1928.

APPEAL from circuit court of De Soto county, HON. GREEK L. RICE Judge.

Claim by W. F. Wood against De Soto county. Judgment for claimant on appeal from order of the board of supervisors rejecting the claim, and the county appeals. Affirmed.

Affirmed.

R. L. Dabney, for appellant.

The counsel for the claimant in this case dwelt much took great comfort from the holding that no contractual on Swann v. Buck, 40 Miss. 168, in the court below, and relation existed between the claimant and the county, and hence the claim could not be an "account," in the sense of sec. 2543, Hemingway's Code 1917. An answer to this reasoning is, that in that case the district attorney went into office by virtue of his election thereto, and upon taking the oath of office; while in the case at bar the claimant had to do more than be elected circuit clerk and take the oath of office; in fact, he could not take the oath of office until he had entered into bond. In all penal bonds there must be a party or parties of the first part, and parties of the second part. The officer being the party of the first part and the state the party of the second part, how can it be said there was no contractual relation between them? Sec. 2460, Hemingway's Code 1927, expressly provides that "all statutes of limitations shall run in favor of the counties of the state" and it became the duty of the board of supervisors to plead the three-year statute. Individuals may waive the statutes of limitation, but fiduciaries may not. I am not unaware of the two opinions in Madison County v. Collier, 79 Miss. 220; 87 Miss. 204. I confess that my legal curiosity is excited, to know how the former case came to be overruled; but be that as it may in the second case, Judge TERRALL, speaking for the court, says: "An examination of Code 1892, chapter 83, on limitations of actions, will disclose the information that the claim here sued for is governed by the limitation of either three or six years. Section 7237 makes six years the limitation of all actions for which no other period is prescribed, and section 2739 reads: 'Actions on open account . . . shall be commenced within three years next after the cause of such action accrued, and not thereafter' . . . because it does not arise out of a contract of any sort, it being long settled in this state by the decision in Swann v. Buck, 46 Miss. 268, that the fees and salaries allowed to officers do not arise from contract." No other authority is cited, nor is it made manifest how the opinion in the above-mentioned case (2d case) came to be reported six years after the opinion in 79 Miss., which holds squarely that the three-year statute does apply. In view of the fact I respectfully submit that the questions here presented at least call for a reconsideration of the Swann-Buck case, that the lawyers of the state may know just what part of the Swann-Buck case is law, and what part not law.

In Moore v. Tunica County, 143 Miss. 821, nor in the case of Claiborne County v. Morehead, 145 Miss. 867, is the question of limitation of actions raised. The Moore case simply holds that the clerk's collection and retention of fees collected by him, as clerk did not estop him from claiming the difference between the amount of such fees, and the salary prescribed by the Acts of 1920; while the last-named case follows the reasoning of the Moore case, and applies to deputy sheriffs.

H. G Johnston, for appellee.

The case at bar is governed by the six-year statute of limitations. State v. S. & M., 26 Miss. 47. In this case the supreme court held that the compensation of a public official was not based upon contract. In the case of Swan v. Buck, 40 Miss. 268, the court held the same principle of law to be good. The latter case was followed in the case of Madison Co. v. Collier, 87 Miss. 204, 30 So. 610. The appellant contends that the three-year statute, or sec. 2637, Hemingway's Code 1927, applies for the reason the claim in the case at bar is an "open account." Our court, in Madison Co. v. Collier, 87 Miss. 204, defined an account by quoting 2 Am. & Eng. Ency. Law (2 Ed.), 434. "An account is a written statement of pecuniary transactions, a detailed statement of demands in the nature of debt and credit between parties arising out of contract or some fiduciary relation." There being no contractual relations existing between the parties in the case at bar, therefore, the three-year statute cannot apply, as the claim mentioned herein is certainly not an open account, as defined by the court in Madison County v. Collier, supra. When we remember the principles established by the court in the early cases of State v. S. & M. and Swan v. Buck, supra, the law being as stated, the case at bar can be governed by no other statute than that of six years or sec. 2635, Hemingway's Code 1927.

R. L. Dabney, in reply, for appellant.

Since the filing of my original brief in this cause the supreme court of the United States has handed down its opinion in Robertson v. Miller. As that opinion is directly in line with the contention raised by my fifth assignment of error, in the case at bar, I am taking the liberty of directing the court's attention to the rule announced by the United States supreme court in the Robertson-Miller case particularly to that part of the opinion which declares, with emphasis, that a contractual relation does exist between a public officer and the government under which he serves, to the extent that there is an implied contract under which the officer can recover. See Fisk v. Police Jury of Jefferson Parish, 116 U.S. 131. Since the opinion in the Robertson-Miller case I find that I...