Summary
In Bishop v. Chickasaw County, 182 Miss. 147, 180 So. 395, the court held that the plaintiff, ex Sheriff and Tax Collector, had to first present his claim properly dated and itemized to the Board of Supervisors for allowance before he could institute suit. It appeared from a reading of the cases and a legislative history of Section 2932 that it was the intention of the legislature to require any person having a just claim against the county to first present the claim to the board of supervisors for allowance before instituting any other legal action.
Summary of this case from Dorsey v. County of AdamsOpinion
No. 33094.
April 18, 1938.
1. TAXATION.
Bill of tax collector to recover sum allegedly due as unpaid commissions on taxes collected did not state cause of action, where bill did not allege that before suit was brought a claim properly dated and itemized had been presented to board of supervisors for allowance since such allegation is jurisdictional (Code 1930, section 253, as amended by Laws 1932, chapter 179).
2. COUNTIES.
A right of action in favor of tax collector for unpaid commissions does not arise until claim properly dated and itemized has been presented to board of supervisors for allowance (Code 1930, section 253, as amended by Laws 1932, chapter 179).
3. TAXATION.
A tax collector in settlement for taxes collected is credited with those he fails to collect on account of insolvency, and he is not required to pay over taxes he fails to collect on that account (Code 1930, section 253, as amended by Laws 1932, chapter 179; sections 3279-3285).
4. EVIDENCE.
A presumption existed that tax collector and board of supervisors complied with law regarding the crediting of the collector on account of insolvency (Code 1930, sections 3279-3285).
5. TAXATION.
The bill of tax collector to recover amount of insolvent list allowed him by board of supervisors did not state cause of action, where it was not alleged that collector in making settlement paid over in cash to the proper authority the amount of the insolvent list and sought a refund (Code 1930, sections 3279-3285).
6. EQUITY.
Where bill fails to state a cause of action, the question could be raised by general demurrer.
7. EQUITY.
Where demurrer was sustained to bill and complainant did not ask leave to amend, bill was properly dismissed.
APPEAL from the chancery court of Chickasaw county; HON. JAS. A. FINLEY, Chancellor.
L.F. Easterling and J.E. Skinner, both of Jackson, for appellant.
It is a well settled rule of pleading in this state as well as other states that where a demurrer is interposed to the bill and assigns therefor grounds which are general and also grounds which are special, going to either a part of the bill or else raising an affirmative defense such as the statute of limitations, that the demurrer will be treated as a general demurrer and the judgment of the court is limited to consideration of the general demurrer solely. We say, therefore, in the case at hand the judgment of the lower court in sustaining the demurrer should be taken as an adjudication of the first two grounds of demurrer and that on review this court will consider only the two questions: (1) Is there any equity on the face of the bill? and (2) Does the bill state a cause of action against the defendant?
Columbia Mutual Life Ins. Co. v. Jones, 160 Miss. 41, 133 So. 150.
We respectfully submit that the averments of the bill clearly and unmistakably set forth complainant's actionable interest, the subject matter of the suit, that is, complainant presents his claim which arises from a mutual accounting; the bill sufficiently avers the interest of the defendant in the subject matter of the suit, that it is liable to complainant for the sum sued for; and the facts as set out in the bill distinctly show that, if taken as true, the complainant is entitled to the relief prayed for. We think there can be no question, and will be no question that an equitable cause of action was set forth in the bill and that if the bill were taken as confessed, the lower court could have had no hesitancy in rendering a decree granting the complainant the full relief prayed for as against the defendant.
We submit that the bill of complaint in this case so obviously states the cause of action against the defendant that the action of the lower court in sustaining the demurrer must have been based upon ground three of the demurrer, that is, the ground raising the question of the statute of limitations. We say in the face of the unwavering line of decisions on this subject that the action of the lower court was manifest error.
We call the court's attention further to the order sustaining the demurrer which goes one step further and dismisses the bill without granting any leave of privilege to the complainant of amendment of the bill. The rule is well settled in this state that where enough appears in a complainant's bill to show upon a proper statement of his case he may have relief; it is error, on sustaining a demurrer to dismiss the bill. Leave to amend should be granted.
Hiller v. Cotton, 48 Miss. 593; Kimbrough v. Curtis, 40 Miss. 117.
The bill shows that the amount sued for arose by virtue of certain credits allowed for insolvencies which were duly spread upon the minutes of the Board of Supervisors at the December, 1929, meeting and the February, 1930, meeting. These credits representing sums charged to the sheriff and declared uncollectible by the board, were in the nature of an adjudication by the board of an indebtedness in the said amount due to complainant. In other words, when these credits were allowed complainant by proper order of the board of supervisors, they became an indebtedness owed by the county and had the effect of a judgment.
Kline v. Smith County, 58 Miss. 540; Taylor v. Chickasaw County, 70 Miss. 87.
We believe it is evident that the action of the lower court in sustaining the demurrer must have been based upon the erroneous application of the three year statute of limitation to the claim sued for rather than the six year statute.
Under any theory the claim sued for here are not "actions on open or stated account not acknowledged in writing signed by the debtor or on any unwritten contract, expressed or implied."
Swan v. Buck, 40 Miss. 268; DeSoto County v. Wood, 116 So. 738; Madison County v. Collier, 87 Miss. 204, 30 So. 610.
We submit that the bill of complaint in this case on its face makes out a full case for complainant and is good against a general demurrer.
H.B. Abernethy and C.H. McCraine, Jr., both of Houston, for appellee.
The first item of recovery alleged in the bill was that for the year 1928 appellant received as commissions $1182.20 whereas he was entitled to $1974.71, leaving appellee due him thereon a balance of $772.51. The second item was that for the year 1929 appellant received as commissions $1857.29, whereas he was entitled to $2038.34, leaving a balance due him of $181.05. It was nowhere alleged in the bill that any claim was filed by appellant with the board of supervisors of the county for allowance of either of those items prior to the filing of the bill in the case.
Sec. 253, Code of 1930; Chapter 179, Laws 1932.
The bill in this case, as to the two items of recovery above mentioned, did not allege either that the claim therefor had ever been presented to the board of supervisors, or if it had, that same was "properly dated and itemized."
As to the other item alleged in the bill for recovery of $1676.18, it appeared that under the levy of taxes for the year 1928 on all property in the county on the assessment rolls for the year, with which appellant as tax collector of the county stood charged by law, the owners of the property represented by the various items of the account set forth in Exhibit A to the bill, and making up the sum of $1406.11, were shown to the board at the February, 1930, meeting to have been insolvent, and the board at that meeting passed an order giving appellant credit for those items amounting to $1406.11, as uncollectible, and relieving him of the duty of collection thereof. The board took a similar action as to four other items totaling $270.07 at the December, 1929, meeting thereof for the year 1929. Those two items made up the total of the one for $1676.18 claimed by appellant to be due him in this suit, as set forth in Exhibit A to the bill.
Those orders of the board did not mean that appellant was entitled to recover that much money or any part thereof from the county. It did not appear how much appellant was due the county against which those items were properly credited. That action of the board simply meant that appellant would not be held on his bond for failure to collect that amount as made up of the items enumerated. The mere fact that the board had entered an order giving him credit for those various amounts totaling $1678.18 did not import that county was under any obligation to pay him that amount of money or any part of it.
It is also apparent from this record that appellant was not entitled to recover on the item of $1676.18, or any part of same, in this suit for another reason. It was shown on the face of the bill an exhibit that credit was allowed to appellant for a total of those items in the sum of $1678.18. If such allowance entitled him to that much money, it required only a warrant on the county treasurer to pay same. The proper legal remedy for him would, in that instance, have been a mandamus against the clerk of the board requiring him to issue a warrant therefor. Certainly after credit was granted him for that amount he had no right to bring suit against the county for same. A county can only be sued on a claim where the account has been disallowed, or allowance has not been made after a reasonable time.
Section 253, Code of 1930; Polk v. Tunica County, 52 Miss. 422; George County v. Bufkin, 117 Miss. 844, 78 So. 781.
The demurrer was properly sustained on the first two grounds thereof also because on the face of the bill all of the items sued for were barred by the six year statute of limitations, as separately set forth in the third ground of the demurrer, and independently thereof.
Section 2291, Code of 1930; Grenada County v. Nason, 174 Miss. 725, 165 So. 811; Thames v. Mangum, 87 Miss. 597, 40 So. 327; Griffith's Miss. Chancery Practice, sec. 302, page 304.
Clearly it was apparent to the court that the statute of limitations had run against any claim sued for, not only up to the time of the filing of the bill, but thereafter also to the hearing of the demurrer. Filing a suit does not stop the running of the statute of limitations unless process is issued thereon or asked for. Neither was done in this case.
Lamkin v. Nye, 43 Miss. 241; Swalm v. Sauls, 141 Miss. 515, 106 So. 775.
An officer of the government cannot waive a limitation imposed by statute upon suits against the United States in the absence of authority permissive of such action.
17 R.C.L. 883, par. 241; Finn v. U.S., 123 U.S. 227, 8 S.Ct. 82, 31 L.Ed. 128; 37 C.J. 722, par. 40; Cochrell v. Seasongood, 33 So. 77.
The only proper way to assign the statute of limitations by way of demurrer to a suit against the county is by general rather than by special demurrer as there is no authority granted by legislative act to any officer or board to waive same as against it.
When a demurrer is sustained a final dismissal of the bill follows unless the complainant obtained leave to amend. The whole rule in this respect is expressed thus: it is not the duty of the chancellor on sustaining a demurrer to inquire whether the party desires to amend, or to insert such leave voluntarily. If such leave is desired the party should and must apply for it, otherwise the order is properly a dismissal. In making such order of dismissal if the demurrer be a general one going to the substance of the bill the dismissal is without reservation.
Griffith's Mississippi Chancery Practice, sec. 311.
No request was made by appellant for leave to amend the bill, or for further time within which to do so, at the time of the hearing on the demurrer or thereafter.
Appellant filed his bill against the county of Chickasaw in the chancery court of that county to recover the sum of $2,629.74, claimed to be due as unpaid commissions on taxes collected by him as sheriff and tax collector during 1928 and 1929, and an insolvent list allowed him by the board of supervisors as such sheriff and tax collector for those years. The commissions claimed aggregate $953.56, and the insolvent list, $1676.18. The bill was demurred to by the county, the grounds set out in it being: No equity on the face of the bill; no cause of action stated; and the six-year statute of limitations. The demurrer was sustained, and upon appellant's declining to plead further the cause was dismissed. From that decree this appeal is prosecuted.
The bill alleges, in substance, that appellant was sheriff and tax collector of Chickasaw county during the years of 1928 and 1929; that during 1928, under the law, his commissions for taxes collected by him amounted to $1974.71; that the board only allowed him $1182.20, leaving due and unpaid $772.51; that during the year 1929 his commissions were $2,038.34, while he was paid only $1,857.20, leaving an unpaid balance due him of $181.05, making the total of unpaid commissions $953.56; that during those years his insolvent list amounted to $1676.18; that the list consisted of taxes he had failed to collect on account of the insolvency of the taxpayers.
As to the commissions, the bill states no cause of action for the reason that it does not allege that before suit was brought the claim was properly dated and itemized and presented to the board of supervisors for allowance. This was required to be done under chapter 179, Laws of 1932, amending section 253, Code of 1930. Such an allegation is jurisdictional; no right of action arises until the statute is complied with. Before the amendment to section 253, Code of 1930, in Covington County v. Morris, 122 Miss. 495, 84 So. 462, the court held that in suits against counties it was necessary to allege and prove that the claim had been first presented to and disallowed by the board of supervisors before suit could be maintained. The only change made by the amendment was to require the claim to be dated and itemized.
As to the insolvent list, the bill alleges that the amount was justly due appellant "over and above any and all legal charges that may be made against him and his bondsmen on account of all receipts had and received by him as tax collector of said county." The statutes governing the duties and rights of the sheriff and tax collector with reference to the insolvent lists are sections 3279 to 3285, inclusive, Code of 1930; they provide, among other things, in substance, that the sheriff and tax collector in his settlements for taxes collected shall be credited with the insolvent lists on proper showing or inability to collect. He is charged with all taxes due according to the assessment rolls. He is credited with those he fails to collect on account of insolvency, but he is not required to pay over taxes he fails to collect on that account. In other words, he is not required to pay over all taxes due as shown by the assessment rolls and then receive credit for insolvencies. Putting it differently, when the insolvencies are ascertained the taxes due according to the assessment rolls are credited therewith, or rather the sheriff and tax collector is credited with the amount on the assessment roll. The sheriff and tax collector does not pay the amount and then have it refunded to him by the board of supervisors, nor does the bill allege that such was done. The presumption is that appellant and the board of supervisors complied with the law. The contrary is not alleged in the bill. It is not alleged either directly or by reasonable inference that appellant in making his settlements paid over in cash to the proper authority the amount of the insolvent lists and sought a refund; there is no authority of law for such a proceeding. We conclude, therefore, that the bill states no cause of action as to any of the items. That being true, the question could be raised by a general demurrer.
The appellant contends that the bill should not have been dismissed on sustaining the demurrer; that he should have been given leave to amend. This he did not ask for. The rule is that where a demurrer is sustained a final dismissal of the bill follows unless the complainant asks leave to amend. Griffith's Chancery Practice, section 311.
Affirmed.