91 So. 697 | Miss. | 1922
delivered the opinion of the court.
Appellee, Fred Lessing, sued appellant, board of supervisors of Jefferson county, in the circuit court of that county for damages alleged to have been done his land by appellant in changing the course of one of the public roads of said county, and recovered judgment, from which appellant prosecutes this appeal.
The only question in the case is whether appellee before suing complied with section 311, Code of 1906 (section 3684, Hemingway’s i’ode). That statute is in this language :
“A person having a just claim against any county shall first present the same to the board of supervisors thereof for allowance; and, if the board shall refuse to allow it, may appeal from the judgment of the board to the circuit court, or may bring suit against the county; and, in either case, if such person recover judgment, the board of supervisors shall allow the same, and a warrant shall be issued therefor.”
On August 3, 1920, appellee filed with and presented to áppellant the claim in question, and requested its allowance. Appellant had the claim marked “Continued,” and failed and refused to take any further action thereon for more than twelve months, and until the 15th of August, 1921, when appellee brought this suit. It will be noted from the statute that it is made a condition precedent to suit on a claim of this character that it first be presented to the board of supervisors for allowance, and that the latter “refuse to allow it.” In construing this statute in Brookhaven v. Lawrence County, 55 Miss. 187, it is said that the purpose of the statute in requiring a claim against a county to be presented to the board of supervisors as a
In Clay County v. Chickasaw County, 76 Miss. 418, 24 So. 975, it was shown that the claim in question, before sued on, was presented by the attorney of the claimant to the board of supervisors along with the facts supporting the claim. The board entered an order upon its minutes, referring the olaim to its attorney. Thereafter the attorney for the board informed the attorney for the claimant that he did not think the county liable for the claim, and suggested that he sue thereon; and thereupon suit was instituted. The court held that this was a sufficient presentation of the claim to the board, and sufficient evidence of the refusal by the board to allow the claim, notwithstanding the only order on the minutes of the board was the one above mentioned; and that it was not necessary that the refusal to allow be entered upon the minutes.
Here we have complete inaction on the part of the board of supervisors for more than twelve months, without pretense of any legal excuse. We are of the opinion that there was a disallowance of this claim in the meaning of the statute. The court below so held.
Affirmed.
