95 S.E. 170 | N.C. | 1918
This was an action by the plaintiffs, drainage engineers, who performed services and incurred necessary expenses for the defendant corporation both before and after its organization. These services were necessary to the establishment of said district before the prayer of the landowners could be granted by the court creating the district. The plaintiffs have obtained judgment for the sums due them, but the corporation commissioners and the owners of the land in said district have failed and refused to pay such judgment.
This proceeding is for a mandamus to compel the drainage commissioners to levy an assessment upon the lands in said district for that purpose. The court signed judgment of mandamus and the defendants (191) appealed. The court properly directed a mandamus to issue to the drainage commissioners to levy an assessment upon the lands in said district to pay off the judgment due the plaintiffs. The judgment having been rendered against the commissioners of said drainage district, *205 it is not an open question that it is an obligation of said district and the proper method is to compel the levy of an assessment to pay off the judgment.
Had these expenses been incurred for the formation of a district, whose organization was not completed, it may be that the plaintiffs would have been restricted to the petitioners at whose instance they had done the work. But in this case the proceeding eventuated in the organization of the corporation and further, there has been a judgment rendered against said corporation for the indebtedness. The defendants put up the defense that they have not directed the issuance of bonds whereby money can be raised for such purpose. It is not necessary that such bonds should be issued. That is a matter for the corporation, but if it does not choose to issue the bonds, it is open to the plaintiffs to proceed to have an assessment ordered upon the lands in said district to raise a fund for the payment of this judgment.
The corporation was a party defendant to the judgment and also to this proceeding. The summons is against G. B. D. Parker, N. H. Williams, and O. W. Quinn, and the Board of Drainage Commissioners of Muddy Creek Drainage District. Paragraph 2 of the complaint avers that the "Board of Drainage Commissioners of Muddy Creek Drainage District is a corporation duly created, organized, and existing under and by virtue of the Drainage Law of the State of North Carolina, and that G. B. D. Parker, N. H. Williams, and O. W. Quinn are the duly elected and appointed drainage commissioners of said drainage district." This allegation is made and admitted in the answer to the action in which the judgment was obtained and also in this proceeding for a mandamus. The corporation is a defendant. Jones v. Comrs.,
The court found the facts and properly held that the defendants are estopped in this proceeding to set up any defense which might have been raised in the action in which judgment on the indebtedness was rendered, and that the lands in said district are subject to an assessment for the payment of said indebtedness and ordered that the drainage commissioners should levy and cause to be collected a sufficient assessment upon the lands within the bounds of said district for the payment of the judgment.
Affirmed.
Cited: Casualty Company v. Commissioners of Saluda,
(192)
