81 So. 792 | Miss. | 1919
delivered the opinion of the court.
The hoard of supervisors of Holmes county, as complainant filed its bill, in its own name, against the appellant, National Surety Company, and others, seeking to recover damages for breach of a contract to build and construct certain highways in supervisors’ district' No. 5 of said county. The bill of complaint pur
Several serious questions are presented; but, inasmuch as a decision upon one ground will reverse the lower court and it appears probable the other questions will not arise again, we shall pass upon but one of the errors assigned by the appellant, and that is whether or not the board of supervisors of the county is without power to institute or maintain this suit in the name of the board. The complainant in the bill here being the board of supervisors of Holmes county for the benefit of a district therein, and not being a suit by the county, it must fail unless there be statutory authority, giving the board .the power to sue by its name. .
After a careful investigation of the statutes on that subject we have been unable to find any statute authorizing the board of supervisors to sue in its name for the benefit of a county or any part of a county. Such suit to enforce the- rights of a county or any subdivision thereof cannot be brought in the name of the board of supervisors, but must be instituted in the name of the county. ' Sections 309, 310, Code pf 1906 (sections 3682, 3683, Hemingway’s Code),
Boards of supervisors were, authorized by statute to sue and be sued by their name for about thirty-five years prior to the adoption of the Code of 1892, which annulled this power and authorized suits to be brought by and against the county by its .name. The statute in the Code of 1892, authorizing the county to sue and be sued by its name, and thus abrogating the right of the board of supervisors to sue in its name under the former
We have been unable to find any case raising the point here, since the adoption of the Code of 1892. At all. events, hoard of supervisors have been without power to sue in their own name since November 1,.1892, and therefore the decree of the lower court is reversed, and the bill dismissed.
Reversed and bill dismissed.