Klein v. Board of Supervisors

54 Miss. 254 | Miss. | 1876

Simeall, C. J.,

delivered the opinion of the court.

It was error to dismiss the petition of the plaintiff in error. His suit was brought in strict conformity to the Act of April 5, 1876 (Acts 1876, p. 56). The petition under that act constitutes the leading pleading in the suit, and takes the place of the alternative writ upder the former practice. It must state the plaintiff’s claim ; and to it the respondent must plead.

There is nothing in the first cause assigned in the motion to dismiss. Nor is the cause of action barred by the Statute of Limitations, either under the Code of 1857 or of 1871.

The allowance of the claim of the creditor by the board of supervisors (or the board of police, their predecessors) was a conclusive ascertainment and establishment of the debt, and in that aspect it became of the nature of a judgment. The warrant is issued by the clerk of the board on the treasurer, 'as a means of procuring payment. He is required by law to issue it to the creditor, wherever the claim has been allowed. There is no mode by which the creditor can procure satisfaction, if there are no funds in the county treasury, except by putting in force the taxing power by mandamus. Statutes of limitations affect the remedy. There is no provision either in the Code of 1857 or that of 1871 which cuts off the right of the creditor to his suit in mandamus. In Carroll v. Board of Police of Tishomingo County, 28 Miss. 38, the effort was to apply the provision of the statute, limiting a time for the revival of judgments by scire facias, and the issuance of executions, to a case like this; but it was held that the statute did not apply, because the judgments of boards of supervisors could not be enforced in that way. In Klein v. Board of Supervisors of Warren County, 51 Miss. 878, it was said that the statute giving the right to sue the county did not embrace claims that have been allowed, but is confined exclusively to those that have been rejected. Lawrence County v. City of Brookhaven, 51 Miss. 68.

No provision of the Statute of Limitations embraces a debt like this. Whether purposely or from inadvertence, the legislature has fixed no time within which the creditor’s right will be barred.

The plaintiff in error, in his petition, set forth his claim with sufficient precision and fulness.

It was error, therefore, to have dismissed his suit.

Judgment reversed and cause remanded.

CAMPBELL, J., took no part in this decision.