Opinion
No. 28887.
May 26, 1930. Suggestion of Error Overruled December 8, 1930.
1. APPEAL AND ERROR.
Order sustaining motion to strike and demurrer, though not expressly dismissing action, held appealable as order of dismissal, absent leave to amend.
2. PLEADING.
Count in amended declaration being merely transcript of original declaration, to which demurrer was sustained, could be stricken unless demurrer should have been overruled.
3. PLEADING.
Motion to strike, though addressed to entire declaration, could be sustained in whole or in part.
4. HIGHWAYS. County board of supervisors, under order retaining funds of highway contractor, could not pay out funds except with contractor's or assignee's consent or pursuant to decree, barring contractor.
Order of board of supervisors withheld payment of amount due contractor on highway contract for the benefit of the persons legally entitled thereto, such amount representing claim of creditor who furnished feed for mules used by contractor in building highway, or until contractor or its assignee should give good and sufficient bond conditioned to save the county harmless.
5. ACTION.
Declaration alleging cause of action based on assumpsit and on common counts for money loaned, advanced, and paid, and for money had and received, held not demurrable for misjoinder of causes of action.
6. COUNTIES. Count in declaration in proceeding against county board of supervisors for indebtedness due contractor held to state causes of action in indebitatus assumpsit.
Count in declaration alleged that county was indebted to plaintiff in designated sum for money "before that time loaned, advanced to and paid, laid out and expended for defendant at its request," and that the county was indebted to the plaintiff in the like sum "for money before that time had and received by defendant for the use of plaintiff."
APPEAL from circuit court of Warren county. HON.E.L. BRIEN, Judge.
Brunini Hirsch, R.L. McLaurin and Chaney Culkin, all of Vicksburg, for appellant.
The defendant, through its supervisors, in entering the above order directing the money to be withheld for the payment of this account, was acting judicially and not ministerially, the order being equivalent to a judgment, and the only way that it could be attacked would be by appeal to the circuit court, as provided for by statute (Sec. 6, Hemingway's Code of 1927), and such judgment, when duly entered, cannot be collaterally attacked.
Arthur v. Adam Speed, 49 Miss. 404; Klein v. Supervisors, 54 Miss. 254; Kelly v. Wimberly, 61 Miss. 548; Noxubee County v. Long, 141 Miss. 72; Campbell v. Humphreys County, 133 Miss. 410.
Mandamus is the proper remedy to enforce the payment of a claim against the county which has been allowed by the supervisors.
Taylor v. Chickasaw County, 70 Miss. 87; Jonestown v. Ganong, 97 Miss. 67; Hebron Bank v. Lawrence County, 109 Miss. 397; Town of Crenshaw v. Jackson, 122 Miss. 711; Oldham v. Lafayette County, 133 Miss. 505.
A general demurrer was first heard, and overruled, and a special demurrer was thereafter considered, and sustained by the trial court, to which action the appellant excepted. This action of the trial court was, reversible error.
Section 558, Hemingway's Code of 1927; Wilmot v. Y. M.V.R.R. Co., 76 Miss. 374; Arnold Lumber Co. v. Ragland, 106 Miss. 51.
In support of the second and third counts of the declaration appellant cites sections 4 and 5 of 5 Corpus Juris.
Henry Henry, of Vicksburg, for appellee.
The board of supervisors of Warren county is no tribunal, stretching its quasi-judicial capacity to the extreme, to pass on the validity of an open account existing between Bass Company and the Excello Feed Milling Company, adjudicate the set-offs, counterclaims, or other perfect defenses which Bass Company might have, or did have, to the account exhibited against them.
It is a frequently asserted and universally recognized rule that mandamus only lies to enforce a ministerial act or duty; in this sense a ministerial duty may be briefly defined to be some duty imposed expressly by law, not by contract or arising necessarily as an incident to the office, involving no discretion in its exercise, but mandatory and imperative.
18 R.C.L., sec. 28, page 116.
Where a discretion is left in an inferior tribunal, the writ of mandamus can only compel it to act, but cannot control the discretion.
Monroe County v. State, 63 Miss. 135; Attala County v. Grant, 9 Smedes Marshall, 77; Vicksburg v. Rainwater, 47 Miss. 547; Clayton v. McWilliams, 49 Miss. 311; Robinson v. Ittawamba County, 105 Miss. 90.
The motion to strike was properly sustained by the lower court as to the first count of the amended declaration as the same was practically identical with the statement of facts and the allegations of the original declaration.
Forrest B. Jackson, Assistant Attorney-General, for appellee.
The motion to strike the first count of the declaration was properly sustained. The first count of the amended declaration filed by the plaintiff is identical with the original declaration filed by the plaintiff, and inasmuch as the court had already sustained a demurrer to the first or original declaration, the pleading by plaintiff of the first count in the same language was a frivolity and as such a motion to strike was the proper plea on behalf of the defendant.
The demurrer as to counts two and three was properly sustained.
The case of Alford Lumber Company v. D.L. Ragland, 106 Miss. 51, 63 So. 338, holds that if a demurrer is not a defense to the whole declaration to which it is applied, it should be overruled.
The demurrer in the instant case is not a special demurrer, although it is referred to as such in the order of the court sustaining same as to the second and third counts. The demurrer is divided into three parts, but each of said counts contains practically the same causes of demurrer and goes to the sufficiency of the pleading in stating a cause of action against the defendant.
The remedy of the plaintiff for the supplies furnished is not against the county but is against the bond of the contractor for construction of the highway.
Section 4040, Hemingway's Code 1927; Section 2598, Hemingway's Code 1927; Mississippi Fire Insurance Co. v. Evans et al., 120 So. 738; Dickson v. U.S.F. G. Co., 117 So. 245.
The appellant filed a petition in the form of an ordinary declaration in an action at law styled as such by the pleader, and which will hereafter be so referred to, by which it sought a writ of mandamus to compel the appellee to issue it a warrant for the amount of an indebtedness alleged to be due it by Bass Co. The declaration alleged that Bass Co. is indebted to the appellant in the sum of two thousand seventy-four dollars for two carloads of "feed for mules" sold by it to them, with interest thereon; that Bass Co. completed their contract to build the highway, and that subsequent thereto the appellant filed with the board of supervisors of Warren county a statement of Bass Co.'s indebtedness to it, and thereupon, at a regular meeting, the board entered the following order:
"It is ordered that the allowance heretofore during this term made to the contractors, B.H. Bass Company, on and for their tenth final estimate, on the north scenic highway, west of the Yazoo river, be reduced from five thousand five hundred thirty-four dollars and fifty-eight cents by two thousand two hundred dollars to three thousand three hundred thirty-four dollars and thirty-eight cents, and the payment of said two thousand two hundred dollars be withheld until further and otherwise ordered, or until and unless either said B.H. Bass Company, or J.W. Clark, their assignee, shall give to the county and highway commissioners a good and sufficient bond in the penal sum of two thousand five hundred dollars to be approved by the clerk of the board and by the attorney for the highway commissioners conditioned to save harmless and indemnify the county and highway commissioners from and against all losses, payments, expenditures, damages and expenses whatsoever on account of paying to said B.H. Bass Company or to their assignee, J.W. Clark, the said two thousand two hundred dollars, the same representing the claim of the Excello Feed Milling Company, of Memphis, Tennessee, for two thousand seventy-four dollars for feed for mules furnished to said B.H. Bass Company, and approximately one year's interest thereon, which the board has been notified to hold for the benefit of the person legally entitled thereto."
That since the making of this order the appellant has demanded, but the appellee has refused to issue to it, a warrant for two thousand seventy-four dollars and interest. The prayer of the declaration was for the issuance of a writ of mandamus directing the appellee to issue a warrant to the appellant for the amount due it by Bass Co. A demurrer to this declaration was sustained, with leave to the appellant to amend. Thereafter the appellant filed an amended declaration in three counts. The first count reproduced the original declaration to which the demurrer had been sustained; the second is in assumpsit, counting on the order of the board of supervisors, hereinbefore set forth, as an obligation assumed by the board to pay to appellant the amount due it by Bass Co., and prayed for a judgment against the county therefor; the third count is, in fact, two common counts, one alleging that the county was indebted to the appellant in the sum of two thousand two hundred dollars for the money "before that time loaned, advanced to and paid, laid out and expended for defendant at its request;" and the second that the county was indebted to the appellant in the like sum "for money before that time had and received by defendant for the use of plaintiff," and prayed for judgment therefor.
To this amended declaration the appellant filed a motion to strike it from the files, the ground therefor being that it "stated a cause of action altogether foreign, different and adverse to the original declaration." A demurrer, the ground of which is that each of the three counts sets forth "a separate and distinct cause of action;" and another demurrer, challenging separately each count as being insufficient in law for the maintenance of an action thereon.
The court below disposed of the motion to strike, and of the two demurrers, in one order or judgment, by which the motion to strike was sustained as to the first count, and overruled as to the second and third. The demurrer for misjoinder of causes of action was overruled, and the demurrer to the separate counts was sustained as to the second and third counts. This order did not expressly dismiss the action; but as no leave to again amend was obtained by the appellant, it was, in fact, an order of dismissal, and therefore appealable. Jacobs v. New York Life Ins. Co., 71 Miss. 656, 15 So. 639.
The first count of the amended declaration being merely a transcript of the original declaration, to which a demurrer had been sustained, the court below had the right to strike it from the declaration, unless the demurrer thereto, in the first instance, should have been overruled. 49 C.J. 692. It is true that the motion to strike was addressed to the whole declaration; but the court had the right to sustain it in whole or in part. This necessitates an examination of the ruling on the original demurrer.
The order entered by the board of supervisors sets forth merely an agreement by it to retain out of the money due by it to Bass Co. an amount sufficient to cover the appellant's claim against them, and "to hold (it) for the benefit of the person legally entitled thereto." The board has no right to pay this money to the appellant except with the consent of Bass Co. or its assignees, or pursuant to a judgment or decree of such character that Bass Co. or their assignees will be thereafter barred from demanding its payment again by the board. The demurrer to the original declaration was therefore properly sustained, and consequently no error was committed by the court below in striking the first count from the amended declaration.
With the first count stricken from the amended declaration, the two remaining counts thereof are not subject to demurrer for misjoinder of causes of action, they being such as clearly can be joined in one declaration, and therefore that demurrer was properly overruled. The demurrer to the second count of the declaration was properly sustained for the reason hereinbefore assigned for sustaining the demurrer to the first count thereof.
The demurrer to the third count of the declaration, which, as hereinbefore stated, is in fact two counts, should have been overruled, for it sets forth two perfectly good causes of action, both in indebitatus assumpsit.
The judgment of the court below will be affirmed in so far as it dismisses the first two counts of the declaration, but will be reversed in so far as it dismisses the third count.
Affirmed in part, and reversed in part, and remanded.