41 So. 463 | Ala. | 1906
It appears from the judgment entry that respondents’ demurrer to the petition was, on motion, stricken from the files. This motion, while appearing in the transcript as a part of the record of the trial court, is not incorporated in the bill of exceptions. It was not a pleading in the cause (Meyer v. Block, 139 Ala. 174, 35 South. 705), and therefore not properly a part of the record of the court below, and it cannot be looked to or considered by us for the purpose of determining whether properly or) improperly granted. — Jones v. Anniston, 138 Ala. 199, 35 South. 112, and cases there cited. Speaking to this point, it was said in Randall v. Wadsworth, 130 Ala. 638, 31 South. 555: “The second assignment is based on the ruling of the court on motion to strike certain pleadings. Rulings on motions to strike can he presented for review on appeal only by bill of exceptions. Motions of this character are usually oral, and form no part of the record as pleadings proper, and, although reduced to writing and copied into the record, cannot be considered a.s forming any part of the proceedings constituting the record proper in the court below.” In Spraggins v. State, 139 Ala. 102, 35 South. 1000, it is also said: “Pleadings and the rulings thereon should be shown by the record, and, when a motion to strike pleadings is ruled on, a bill of exceptions is proper to show the. motion and that an exception was reserved to the ruling; but at the same time the record proper should show that a judgment was rendered by the court.” In Forbes v. Rogers, 143 Ala. 208, 38 South. 843, this language is used: “The action of the trial judge in strking pleas will not be reviewed by this court, when the bill of exceptions fails to set out the motion.” Quotations from other cases might he indulged in, but these will suffice. See, also, Lynn v. Bean, 141 Ala. 236, 37 South. 515; Hooper v. State, 141 Ala. 111, 37 South. 662. Furthermore, after the demurrer was stricken from the files, it was no longer a part of the record of the court below,
After the demurrer was stricken and the declination of respondents to plead further, upon motion of relator its petition for the writ of mandamus was granted, and the writ awarded. We apprehend that it will not be gainsaid that this was error, if upon the facts alleged in the petition it appears that the relief should not have been granted. In this respect, if the facts alleged do not authorize the award of the writ, there can be no difference from a case where the complaint fails to state a substantial cause of action. In such cases it.is the established rule of this court, whether a defense be interposed or not, to annul the judgment for want of jurisdiction. In other words, such a complaint will not support a judgment. — Trott v. Birmingham Ry. Light & P. Co., 144 Ala. 384, 39 South. 716; Linam v. Jones, 134 Ala. 570, 579, 33 South. 343, and cases there collected. It is entirely clear that the relator’s right to the writ sought is, and must be, predicated upon the fact that the respondents, who compose the court of county commissioners of Chilton county, as such officers, have refused to audit the claim presented to that tribunal as required by section 1416 of the code of 1896. Clearly a writ cannot be obtained for the purpose of collecting the claim, whether audited or not. If the claim was properly verified and presented, and the court refused to audit it— that- is, refused to allow or disallow it — then mandamus to compel it to audit it is clearly the remedy. — Scarbrough v. Watson, 140 Ala. 349, 37 South. 281. But, if the court audit the claim by disallowing it, the remedy is by an action at laAv against the county. — § 13, code 1896; Scarbrough v. Watson, supra. It appears from
On the 28th day of July, 1905, this relator filed in the commissioners’ court its verified petition, showing the amount of its claim and the facts out of which the supposed liability of the county arose, as fully, and perhaps more so, as did the claim originally presented, asking that court, among other things, to consider the claim, allow it, with accrued interest ,or, if disallowed, to cause an order showing the disallowance to be entered upon its minutes. In response thereto- the court entered upon the minute the following order, to-wit: “Upon consideraiton of the petition of the Southern Railway Company, filed by E. S. Lyman, its agent and attorney, on the 28th day of July, 1905, it is the opinion of the court that the petitioner is not entitled to the relief sought in said petition. It is therefore ordered and adjudged by the court that the same be, and is hereby denied.” It seems to us so obvious that this order of the court was a disallowance of the claim that it needs no further comment. It cannot by any .sort of construction be limited in its effect and operation as a denial merely of the other prayer contained in the petition. It is an unqualified denial of all the relief sought by the petitioner, and was therefore ex necessitate a disallowance of the claim presented in and by it for audit.
What we have said is conclusive against the right of the relator to the relief it seeks; but it may not be amiss, before concluding, to call attention to the fact that the averments of the petition do not show that the taxes paid to the county, made the basis of the claim presented, were paid under legal compulsion.- — So. Ry. Co. v. Mayor and Aldermen of Florence, 141 Ala. 493, 37 South. 844. How
The point is made by the appellee that the assignments of error are by the appellants as individuals. It is conceded that the appeal was properly taken in the name of the probate judge and commissioners in their official capacity. This being true, the respondents as officers are the appellants, and as appellants they assign the errors; the language employed being, “Come the appellants,” etc. The point is, we think, too technical.
The judgment appealed from will be reversed, and one will be here rendered denying and dismissing the petition.
[Reversed and rendered.
