Wilkinson County v. Tillery, No. 21126

No. 21126 | Miss. | Mar 15, 1920

Sykes, J.,

delivered the opinion of the court.

The appellee, Mr. Tillery, presented his claim to the board of supervisors of Wilkinson county for the value of a cow killed in process of dipping under orders of the board of supervisors. This claim was presented under chapter 38, Laws of 1917. It was disallowed by the board, whereupon the appellee filed with the clerk of the board a petition for an appeal from the order. In this petition the clerk is requested “to make and file transcript of my claim and order of the' board, returnable to the next session of the circuit court of said county.” The clerk sent to the circuit court a record showing the written claim of appellee and the order of the board of supervisors of June, 1918, rejecting the claim. Some months thereafter appellee filed in the circuit court a petition for a writ of certiorari addressed to the clerk of the board of supervisors requiring him to send up an alleged unsigned bill of exceptions, which appellee claims was correct and was agreed to be correct by the board of supervisors when his claim was considered and rejected; that this alleged bill of exceptions constitutes a part of the record in" the case. The county filed an answer, in which it is admitted that the alleged bill of exceptions had not 'been signed by the president of the board of supervisors as required by section 80, Code of 1906 (section 60’, Hemingway’s Code), and denied that this alleged bill of exceptions, was in point of fact a true bill of exceptions, in that it incorrectly incorporated the testimony and proceedings before the board of supervisors. This answer alleged that the president of the bord of supervisors declined to sign it because it was not-correct, and that the board had not agreed that it was correct. On a hearing on the petition and answer the court sustained the prayer of the petition and issued the writ. When the unsigned alleged bill of exceptions reached the circuit court, the county made a motion to quash same. This motion was overruled. Subsequently the case was tried, and a verdict and judgment were rendered in favor of Mr. Tillery. From which judgment this appeal is prosecuted.

It is unnecessary to set out the testimony upon which the verdict was predicated. The appellant assigns as error the action of the court in sustaining the appellee’s motion for a writ of certiorari, and also in overruling appellant’s motion to quash this writ. Both of these assignments are well taken. The petition or motion affirmatively alleges that the alleged bill of exceptions was unsigned, but claimed it to be true and correct because of the fact that the members of the board of supervisors and the president of the board had admitted its correctness. These averments were denied in the answer. The alleged bill of exceptions being unsigned, it devolved upon the plaintiff to prove that it was- a true and correct bill of exceptions and had been agreed to as such by the president of the board. This he failed to do. Appellee relies upon the case of Polk v. City of Hattiesburg, reported in 109 Miss. 872" court="Miss." date_filed="1915-10-15" href="https://app.midpage.ai/document/polk-v-city-of-hattiesburg-7992159?utm_source=webapp" opinion_id="7992159">109 Miss. 872, 69 So. 675, and 110 Miss. 81, 69 So. 1005" court="Miss." date_filed="1915-10-15" href="https://app.midpage.ai/document/polk-v-city-of-hattiesburg-7992172?utm_source=webapp" opinion_id="7992172">69 So. 1005. In the Polk Case a demurrer was filed to the petition for the writ of certiorari. The demurrer admitted that the bill of exceptions, though unsigned, “was filed and considered by the mayor and commissioners, and found to be a correct statement of the facts and decisions in the premises.” In response to the suggestion of error on page 85 of 110 Miss. on page 1006 of 69 So., thie court said:

“It was not our intention to hold that the circuit court can ascertain for itself whether the proposed bill states the facts and decisions of the board of commissioners, or to dispense with the requirement of the statute that the bill shall be approved by the president of the board of municipal authorities. We simply held and here reiterate that the demurrer in this case admitted that the bill of exceptions- in question had, in fact, been tendered to the mayor, and that the mayor had, in fact, approved the bill as one correctly embodying the facts and decisions of the city commissioners, but that the mayor, upon legal advice, had-declined to affix his signature, unless compelled to do so by mandamus. The mental assent of the mayor fixed conclusively the correctness of the bill; there was then nothing further to be done by appellant.”

Since the record fails to show that this unsigned bill of exceptions was in point of fact agreed to as being true and correct, thien there is no bill of exceptions embodying the proceedings had before the board of supervisors.

It follows that the judgment of the lower court must be reversed, and the cause dismissed.

Reversed and cause dismissed.