187 So. 200 | Miss. | 1939
The appellee, as the owner and holder of certain bonds and interest coupons of appellant, the Abiaca Drainage District, filed its petition in the circuit court of Leflore County against said district and its commissioners praying for a writ of mandamus to compel them to apply the funds of the district in their custody to the payment of appellee's bonds and levy a sufficient tax on the land benefits of the district to pay any balance remaining due thereon. The drainage district plead in abatement the pendency of a former suit in the chancery court of Leflore County between the same parties and involving the same and other questions. Appellee demurred to the plea, which demurrer was sustained and a final judgment entered *118 granting the writ of mandamus as prayed for. From that judgment, this appeal is prosecuted.
That bill was filed by the drainage district against appellee and all other bondholders of the district. Appellee demurred to the bill upon the ground of no equity. No further steps had been taken when the present case was tried. In considering the propriety of the action of the court in sustaining the demurrer to the plea in abatement, the facts well pleaded in the chancery court bill must be taken as true. They are in substance as follows: The district contains 13,185 acres of land. Appellee is the holder of $25,000 of the past due bonds of the district, which with their accrued interest aggregate something like $33,110. The assessed benefits are $213844 bonds issued $110,000; bonds unpaid $57,500; interest in default $25,549; the title to 5903 acres of the lands of the district is in the state, having been forfeited for nonpayment of taxes. The remaining lands, 7282 acres, are assessed with benefits in the sum of $113,300. Taxes for 86% of the assessed benefits have already been levied, therefore, only 14% remains to be levied. Amount of funds on hand, $15,194.39.
The bill alleges that there was certain emergency repair work necessary in order to preserve and make effective the works already constructed; that this would necessitate an expenditure of approximately $2,500. There are set out in the bill the names of the bondholders of the district, including appellee, and their holdings, all of whom were made parties defendant. The bill prays for a decree authorizing the commissioners to expend out of the funds on hand a sufficient amount to do the necessary emergency repair work referred to. and, in addition, that the solicitors filing the bill be allowed a reasonable fee for their services in that behalf, and the balance remaining be prorated among the bondholders of the district, including appellee.
The assets of the district are the benefits already levied and any that may be hereafter. It is manifestly a very *119
doubtful question whether the district is now solvent, and furthermore, whether there is any reasonable probability of its becoming solvent in the near future. There can be no preference among the bondholders of an insolvent drainage district. They share prorata. Teoc Sub-Drainage District v. Halliwell,
Reversed and judgment dismissing the suit.