40 So. 7 | Miss. | 1905
delivered the opinion of the court.
The contention that Code 1892, § 79, prescribes the exclusive remedy of persons holding claims against municipalities, is unsound. Counsel are mistaken in assuming that prior to the enactment of this statute there was no remedy by suit against municipalities. State Board of Education v. West Point, 50 Miss., 647. The established course in recovering on valid claims against municipalities is to institute suit on the claim in a court of competent jurisdiction, and, when the claim is placed in judgment, to enforce payment thereof by execution or other proper process.
The argument which is attempted to be based upon a supposed correlation between secs. 79 and 292 is faulty. Section 292, dealing solely with claims against counties, requires that the claim shall first be presented to the board of supervisors for allowance; but if rejected, the claimant is not limited to the method pointed out by sec. 7 9, but may proceed to institute suit on the claim before any tribunal having jurisdiction of the subject-matter. There is no statutory requirement that a claim against a municipality shall first be presented to the municipal authorities for. rejection or allowance as a condition precedent to the institution of a suit, and Code 1892, § 2923, expressly recognizes the power of every municipality “to sue and be sued.”
The claim of appellant having been rejected by the municipal authorities, he had the right to bring his original suit, and the judgment of the municipal authorities was not such adjudication of the subject-matter as to debar him from its prosecution. It follows, therefore, that the action of the court in overruling the demurrers to the pleas of appellee setting up the two defenses adverted to was error. The demurrers should have been sustained and the cause determined on its merits.
Reversed and remanded.