Newton County Bank v. Perky County, No. 23866

No. 23866 | Miss. | Apr 14, 1924

Holden, J.,

delivered the opinion of the court.

This suit was started in chancery by the appellant, Newton County Bank, to recover against Perry county for a balance due A. G-. Bassett, who was employed by the board of supervisors to estimate the timber subject to assessment for taxes in Perry county. The amount claimed was about six thousand dollars, one thousand eight hundred of which was paid to Bassett, who after-wards assigned his claim for the balance to the appellant Newton County Bank.

Upon the hearing of the cause, the chancellor denied recovery against the county, on the ground that the amount already paid by the county to Bassett was suffi-cient to cover the services rendered, and that no recovery could be had for the balance claimed because the estimate made was inaccurate and unreliable, and that Bassett personally performed only a part of the work; -whereas, the statute authorizing the employment of estimators requires the work be done wholly and personally by the estimator employed, that is, that the contract is one involving personal skill and experience and must be personally performed by tbe person employed to make tbe estimate. Prom the decree dismissing the bill, the bank appeals.

The facts and circumstances giving rise to the suit may be briefly stated as follows: In the year 1920 the board of supervisors of Perry county, acting under chapter 185, Laws of 1918, employed A. Gr. Bassett to estimate the timber subject to assessment for taxes in the county, for which services he was to receive five cents per acre for each acre of land upon which the timber was estimated. Bassett completed his work, with the assistance of several-other estimators, and in October of that year filed his estimate, with the proper affidavit thereto, which was received by the board of supervisors, and the following-order was entered by the board, to-wit:

“Ordered that the estimate of timber made by A. Gr. Bassett showing two hundred million feet feet of additional timber to what was shown by assessment rolls of 1919 and 1920, be received and that the said A. Gr. Bassett be paid for said estimate when enough taxes on the additional timber has been paid into the treasury of Perry county to pay his bill for said estimate. Ordered that the sheriff be authorized and directed to assess additional timber found by estimator Bassett that has escaped taxation in 1919 and 1920 land rolls.”

At the time Bassett filed his estimate, he filed his bill for the services, which showed he had estimated one hundred twenty-four thousand eight hundred forty acres of land, for which he claimed six thousand two hundred forty-two dollars. At a subsequent meeting of the board, one thousand eight hundred dollars was allowed and paid Bassett on his claim, and the balance due was assigned by Bassett to the Newton County Bank, appellant, which in 1922 filed this suit for the balance due, after first presenting its claim to the board and demanding- payment, which was refused. The county answered the bill and claimed that it was not due any further amount to Bassett because the contract was illegal, and that Bassett did not wholly perform the work himself, and that the estimate was inaccurate and of no benefit to the county; and upon these issues the chancellor reopened the whole matter upon the merits of the claim and heard all the evidence introduced by both sides.

The main contention of the appellant, Newton County Bank, the only one meriting discussion, is that the order of the board of supervisors quoted above was a judgment accepting the estimate presented by Bassett, ordering it paid, and was therefore res adjudicata of all questions as to the correctness or value of the estimate made by Bassett, or as to who personally did the actual estimating, or what lands were estimated, and was in fact and law a final adjudication of all questions with reference to. the performance of the service contracted for by Bassett; and that no attack on the judgment could be made because the board had jurisdiction to render the judgment, which was not appealed from, and that the court could not allow a collateral attack of it for irreguJarity or other cause.

So it will be observed that a determination by us as to whether or not the judgment was valid and finally adjudicated all of the questions now presented, will be decisive of the case.

We do not think the order was a valid and final judgment. And while it is indefinite as to the amount, we find the more serious defect in it of failing to follow the-requirements of section 37Í4, Hemingway’s Code (section 341, Code of 1906), which provides that — “The order allowing such claim shall be entered .on the minutes, specifying the name of the claimant, the amount allowed, the page and particular section of the law under which such allowance is made, and on what account.”

The order here involved does not follow the statute; it fails,to name the section of the law under which the allowance is made, or on what account. We think: the order should also have specifically named the amount allowed. It is true the amount conld probably have been ascertained by referring to other papers or records on file, bnt certainly the clerk conld not have issued a warrant upon this order unless he himself had made certain calculations, which he had no authority to do.

The. order not being a complete and valid adjudication of the claim presented, then it was proper for the chancellor to reopen the whole matter and ascertain and determine, from the evidence, the merits of the controversy between the parties and adjudicate the question of whether or not there was any balance due on the contract for estimating the timber of the county. The chancellor went into the merits of the cause and found upon the testimony that the one thousand eight hundred dollars paid Bassett was all that he was entitled to under the contract because of the inaccuracy and incompetency of the service rendered in making the estimate.

After due consideration of the evidence disclosed by this record, we think the decree of the chancellor is well. supported by the testimony, and we seé no reason for reversal. We omit passing upon the question of whether the contract to estimate the timber is a personal contract which must be performed solely by the party selected and contracted with by the board of supervisors, because it is unnecessary to do so.

The judgment of the lower court is affirmed.

Affirmed.