129 So. 266 | Ala. | 1930
This is a mandamus proceeding against the county treasurer to require the payment of a warrant duly issued and delivered to petitioner pursuant to order of allowance of his claim by the board of revenue of Jefferson county, as disclosed by the minutes thereof.
The question as to whether or not the proper remedy was pursued by petitioner is not here presented. Brown v. Gay-Padgett Co.,
The minutes offered in evidence, bearing date November 13, 1928, fully support the allowance of the claim and issuance of the warrant, and, indeed, the averments of the petition are not controverted. This minute entry recites fully the facts as to the claim, the regrading and paving of the county road adjacent to petitioner's property, and the consequent encroachment upon the same to the extent of four feet; the order of issuance of the warrant in the sum of $550, in consideration of a deed to the property therein fully described. The deed was duly executed and delivered by petitioner to the board of revenue of Jefferson county, accepted by said board, and duly recorded. The answer, rather broadly, it seems, charges fraud in the issuance of the warrant as a subterfuge for an illegal and disallowed claim. But the proof, read and considered *527 by the court in consultation, wholly fails to sustain any charge of fraud. The court, over petitioner's objection, permitted inquiry as to any consequential damage to his property by overflow as a result of the elevation of the grade of the road adjacent thereto. The claim here insisted upon, however, is for property actually taken, and for which deed was duly delivered. It would seem, therefore, that the objection was due to be sustained. But even should such evidence be given full weight it shows no fraud, nor does it tend to establish the invalidity of the present claim.
It appears that on November 27, 1928, an order was entered by the board of revenue rescinding the action of the board of November 13, 1928, allowing this claim. Petitioner insists that, under the authority of Commissioners' Court v. Moore,
That petitioner, armed with a warrant duly issued upon a claim duly allowed, had rights which should be respected, is well recognized by our cases. Board of Revenue v. Farson, Son Co.,
We conclude the judgment of the trial court denying relief is erroneous, and should be reversed. No sufficient reason appearing to the contrary, a judgment in petitioner's favor will be here entered.
Reversed and rendered.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.