Randolph County v. Hutchins

46 Ala. 397 | Ala. | 1871

PETERS, J.

I have not been able to discover any sufficient ground for the allowance of the motion made by appellee, to dismiss the appeal in this case. The proceedings, in taking the appeal seem to have been quite regular, and as required by the State. The motion is, therefore, denied, with costs. — Rev. Code, §§ 3485, 3509, 3506, 3507 ; Campbell v. Roach, MS. June term, 1870.

This is an action of debt, founded on several claims against the county of Randolph. The complaint and summons are in the usual statutory forms. The summons was signed and issued by the clerk on the 10th day of February, 1868. The sheriff’s service of this process is endorsed thereon in the following words, viz : “ Received in office, February 13, 1868. Executed, February 14, 1868. S. E. Jordan, sheriff.” This writ, with the complaint, was regularly returned into the proper court, and judgment was taken by default, in favor of the plaintiff and against the county of Randolph as the defendant, at the proper term of said court. In this judgment it is recited that the plaintiff recovered “ of and from the defendant six hundred and sixty-nine 24-100, the damages in the complaint mentioned, together with costs in this behalf expended.” It will be seen that the word “ dollars ” is left out in this judgment, but this word is inserted in the complaint to which reference is made. This complaint is copied below :

“ The State of Alabama,) Circuit Court,

Randolph county. f Spring Term, 1868.

“ Zaehariah M. Hutchins, plaintiff, vs. Randolph County,

defendant.

“ The plaintiff claims of the defendant the sum of one thousand dollars, due from said county by account, on, to-wit, the first day of January, 1867; also, one thousand dollars on an account stated between the plaintiff and defendant, on, to-wit, the first day of January; also, one thousand dollars for work and labor done for the defendant by the plaintiff, on, to-wit, the first day of January, 1867, at the request of said county; also, three hundred and tep dollars on a claim audited and allowed by said county on the 24th of September, 1866, for hauling supplies to Eoanoke, for the destitute of said county, and for which the said plaintiff holds the certificate of said county, dated 24th of September, 1866, for three hundred and ten dollars; also, three hundred dollars on a claim audited and allowed by said county, on the 30th November, 1866, to Joseph H. Davis, for receiving and issuing government rations for the destitute of said county, at Eoanoke, Alabama, to-wit, on the 30th of November, 1866, which warrants are the property of the plaintiff, and are due and unpaid ; which several sums, With interest thereon, are now due.”

This complaint is signed by the attorney for the plaintiff, and accompanied the summons, as required by law. At the trial term of said suit, judgment was taken by default, in favor of said plaintiff against said defendant, as above shown. From this judgment the county appeals to this court, and here assigns the following errors, that is to say :

“ 1. The court erred in rendering judgment by default against appellant.

“ 2. The court erred in rendering judgment by default against appellant, because the appellee’s complaint shows no cause of action.

“3. The court erred in rendering judgment by default against appellant, because the record shows that service of summons was not legally made on appellant.”

The county is a corporation created by law. It is capable of contracting accounts for the business of the corporate body, and may be sued to enforce the payment of the same. — Rev. Code, §§ 896, 907, 908, 909 ; Barbour County v. Horn. MS. June term, 1871; Covington County v. Kenney, 45 Ala. 45. When any claims against the county are audited and allowed, the county, through its commissioners court, is authorized and required to levy a tax to raise the money necessary to pay such claims. — Rev. Code, § 919, et seq.; ib. §§ 922, 926, 930. It is true, that there is a mode prescribed to register claims against the county, and have them paid by the county treasurer; but if they are not allowed and paid in this way, this does not release the county. — Rev. Code, §§ 922, 926, 980. For if the county were thus released from suit, any claim against the county might be defeated, for want- of allowance and registration, if the commissioners should choose to reject it, however just and proper it might be to have it paid. This does not seem to be the purpose of the statute making the county a body corporate, and subjecting it to be sued. In such transactions, either the county is bound or the commissioners are bound.— Whiteside v. Jennings, 19 Ala. 784. The commissioners are but the agents of the corporation. If the agent transcends his authority, he is personally liable. — Crawford v. Barkley, 18 Ala. 270. All claims must, also, be presented for allowance, within twelve months, or they will be barred by this limitation after the claim accrues, unless they are held “ by minors or lunatics.” Rev. Code, §§ 907, 909. If the claim is allowed and registered as required by law, then the treasurer of the county becomes liable to pay it, if he has funds, and may be sued on it if he fails to pay it on demand. — Rev. Code, §§ 926, 930.

But the statute does not declare that even this shall release the county from suit. It only provides one mode for the payment of the claim. And the same statute that provides this, also provides that the county may be sued. Suit, then, is a second mode to enforce the payment. Both these may exist at the same time; they are merely cumulative remedies.

Then, as the county may be sued, and there is no particular mode pointed out for this purpose, the suit may be brought in the usual form, prescribed in other cases for like demands. — Rev. Code, §§ 2523, 2558. This action has been brought in conformity with the general law upon the subject of instituting suits under our Code. The complaint, in this suit, though somewhat irregular in some trifling and amendable particulars, is in sufficient form. — Rev. Code, § 2629; ib. p. 674. The judgment against the county, upon a sufficient complaint, is good, if similar to a judgment against a natural person, in a like action. If the defendant fails to plead, he admits the complaint, and judgment by default may be taken; and if tbe claim is founded on an instrument in writing, as in tbis case, the clerk, under tbe direction of tbe court, may enter tbe judgment for tbe sum shown to be due, and interest. — Eevised Code, § 2770. No more than this has been done in tbis instance. But, at all events, tbe judgment by default was proper.

Tbe return .of the sheriff does not show upon what particular person tbe summons was served, but it shows that tbe process was executed. Tbis is equivalent to saying that it was legally executed. Tbis could only be done by service upon tbe judge of tbe probate court, in the manner required by tbe statute. — Eevised Code, § 2573. Tbe judge of tbe probate court is a person known to the court. There is no need of proof to show that be was tbe person proper to be served with tbe summons and complaint, as there would be in tbe case of a private corporation, where tbe person to be served is not known to tbe court. Tbe sheriff is a sworn officer of tbe State. He knows tbe law. And be knows tbe proper person upon whom be should serve process in bis b’ands. In such case, it is to be presumed that be has discharged the duties of bis office correctly, unless it otherwise appear. — Broom’s Max. p. 428, (marg.); Bank United States v. Dandridge, 12 Wheat. 64, 69, 70. Tbe complaint shows a substantial cause of action. There was no objection to it, or to tbe service of the summons in tbe court below. When tbis is tbe case, tbe judgment of tbe court below will not be disturbed "or reversed. — Revised Code, §§ 2636, 2637, 2629, 2811.

Tbe errors assigned are not sustained by tbe record and tbe law. No others will be noticed. — Shep. Dig. pp. 565, 538.

Tbe judgment of tbe court below is affirmed.