136 Ga. 697 | Ga. | 1911
Lead Opinion
1. “All claims against counties must'be presented for payment within twelve months after they accrue or become payable, or the same are barred, unless held by minors or other persons laboring under disabilities, who are allowed twelve months after the removal of such disability.” Civil Code (1910), § 411.
2. If a person who seeks to recover money from a county on the ground that the county officers illegally borrowed it from'him, but that it was used for specified legitimate current expenses of a given year, has no claim against the county for money, he is not entitled to any recovery. If he has a claim for money against the county on that ground, whether he seeks to assert it by a suit for money had and received, or to set up that, under the circumstances, the law implied a contract to pay him what had thus been received and used for county purposes, in either event it is a claim against the county, and falls within the requirement of the statute quoted in the first headnote. Maddox v. County of Randolph, 65 Ga. 217.
(a) The suit was not brought within twelve months after the accrual of the right of action, and can not be urged as a substitute for or an equivalent of the presentation of a claim.
3. In the case at bar it'did not appear that the claim had been presented .in accordance with the statute; and therefore, if it would otherwise have been legal, it was barred.
4. As the county officers had no legal authority to borrow money and give notes for its future payment, the doing of these acts would not suffice as equivalent to a presentation of the claims required by the statute. The giving of the notes was an illegal promise to pay in the future. The' presentation required by the statute' contemplates, present legal action. ' •
5. The suit.was to recover .money which it was claimed had been borrowed ■ and used;-to pay warrants. .-While there was,.a general averment of sub
6. As this ruling controls the case, it is unnecessary to discuss- any constitutional questions which may be involved.
7. Under the preceding rulings; it was erroneous to refuse to dismiss the case on the ground of the demurrer which set up that the plaintiff’s claims were not presented within the time required by law.
Judgment reversed.
Dissenting Opinion
dissenting. 1. Where one loans to a county money which is used by it in the discharge of its legally incurred liabilities for current expenses, while no action can be maintained against the county by the lender on the loan contract, the lender has a right of action against the county to recover the money thus used by it, in tlie form of an action for money had and received. Butts County v. Jackson Banking Company, 129 Ga. 801 (60 S. E. 149, 15 L. R. A. (N. S.) 567, 60 Am. St. R. 149); Peed v. McCrary, 94 Ga. 487 (21 S. E. 232). See, also, National Bank v. Appleton, 216 U. S. 196 (30 Sup. Ct. 364, 54 L. ed. 443) ; 2 Pom. Bq. Jur. 1720, 1721, and cit.
2. “The action for money had and received is an equitable action and extensively remedial. It lies, in all cases, where money is in the hands of one, which in equity and good conscience should be paid to another.” ' McCay v. Barber, 37 Ga. 424; Whitehead v. Peck, 1 Ga. 140.
3. Where one loans to a county mon.ey which is used by it in the discharge of its legally incurred liabilities for current expenses, which have been properly audited and approved, and to recover the money thus used the lender brings an action against the county for money had and received, the suit does not involve a claim within the meaning of the Civil Code (1910), § 411, declaring that “All claims against counties must be presented within twelve months after they accrue or become payable, or the same are barred, unless held by minors or other persons laboring under disabilities, who are allowed twelve months after the removal of such disability.”