Opinion
No. 31487.
December 17, 1934.
1. COUNTIES.
Order of board of supervisors allowing city's claim for bridge taxes as to one year, but disallowing it as to two other years, held res judicata in city's action to recover disallowed claims (Code 1930, section 253).
2. COUNTIES.
Order of board of supervisors allowing claim against county is judgment of court created for that purpose, and such judgment is valid until reversed by appellate court.
3. BRIDGES.
County was not required to divide with city funds collected for bridges under special, separate bridge levy.
4. APPEAL AND ERROR.
Party cannot accept portion of judgment favorable to him and appeal from that which is unfavorable in court of law, since acceptance of amount allowed will bind him as accepting whole judgment, and appeal, if taken, will be dismissed.
APPEAL from the Circuit Court of Madison County.
H.B. Greaves, of Canton, for appellant.
The only question involved in this suit is whether the city, having presented its bill, dated and itemized for one-half of taxes collected for 1928, 1929 and 1930, can it now, after the board of supervisors has allowed for one year only, accept this allowance, and then bring suit for the other two items on their demand, or is the city bound by the judgment entered by the board of supervisors, not having appealed as directed by the statute?
Section 253, Code of 1930; Acts of 1932, chapter 179, page 476, and chapter 202, page 510.
It is apparent that section 253 of the Code of 1930, refers to claims rejected in toto. When a claim is rejected, the claimant has the alternative of appealing from the order of the board of supervisors, or bringing a separate suit.
The board in passing upon claims acts as a court and its decisions have the same force until reversed.
A.H. Arthur v. Adam Speed, 49 Miss. 405; Section 255, Code of 1930; Yalobusha County v. Carby, 3 S. M. 529; Attala County v. Grant, 9 S. M. 77; Lawrence Co. v. Brookhaven, 51 Miss. 68; 120 Miss. 131, 141 So. 272; Newton County Bank v. Perry Co., 135 Miss. 139, 99 So. 513; Sections 1381 and 1383, Code of 1871; Code of 1880, sec. 2175; Carroll v. Board of Police of Tishomingo County, 28 Miss. 48; George County v. Bufkin, 117 Miss. 844; Ross v. Lane, 3 S. M. 695.
The city of Canton had its day in court, and, if it was aggrieved by the action of the board, the city should have appealed, as provided by the statute.
Von Zondt et al. v. Town of Braxton, 149 Miss. 461, 115 So. 557; Y. M.V.R.R. Co. v. Sibley, 111 Miss. 21, 71 So. 167.
In the case of Miller v. Bulkley, 85 Miss. 706, it was held that to determine what facts were involved, the record alone is the only evidence to be considered. The demurrer in the instant case admits fully there is no dispute as to facts.
As to splitting causes of action, see Kimball v. Railroad Co., 94 Miss. 396; George County v. Bufkin, 117 Miss. 770; Cotton v. Walker, 164 Miss. 208; Criscoe v. Adams, 123 Miss. 37, 119 So. 119.
It is idle to pile up authorities further as to the effect of the presentation of this claim to the board of supervisors for allowance, and the claim being only allowed in part and rejected in part.
George County v. Bufkin, 117 Miss. 644, 78 So. 781.
The three separate items constitute one claim, not three separate and distinct claims, as according to the appellee.
Norwood v. Gulf S.I.R. Co., 155 So. 348; Robinson v. Itawamba Co., 107 Miss. 353.
The court below erred in its judgment in overruling the appellant's plea of res adjudicata, and unless the court makes an exception to the rule heretofore universally held in cases of this kind, or engrafts an exception on the statute, which the court will not do, this case must be reversed and dismissed.
W.H. Robert H. Powell, of Canton, for appellee.
By section 253, Code of 1930, Laws of 1932, page 476, a claim disallowed can be appealed from or a separate suit can be filed therefor. Each case must stand upon its own facts and if you will compare the facts of our case to the facts in the case of George County v. Bufkin, 117 Miss. 844, et seq., you must see that the facts are entirely unlike and that we are correct in our opinion.
The acceptance of the allowance of 1930, in no wise can operate as a bar to the claims for 1928 and 1929, because the adjudication was for the allowance of the 1930 claim and an expressed disallowance of the 1928 and 1929 claims.
It is manifest that the city of Canton had two remedies, one under section 61, Code of 1930, by bill of exceptions, and the other by separate suit under section 253, Code of 1930, amended by laws of 1932, page 476.
The city proceeded under the power conferred by section 253.
In Town of Purvis v. Lamar County, 161 Miss. 455, the court held that one-half of all ad valorem taxes collected on property within a city for road purposes must be paid to the city, whether the county collected the taxes legally or not and refer to said Laws of 1920, chapter 232, and Laws of 1928, chapter 129, and said that the law cannot be avoided by any administrative devices.
Gully v. Attala County, 165 Miss. 86, 145 So. 907; Gully v. Copiah County, 167 Miss. 562, 147 So. 300.
The declaration in the case at bar alleges and the facts agreed show, that the taxes sued for were collected after the enactment of said laws of 1928 and before November 1, 1930, and hence this case of Gully v. Copiah County is conclusive in favor of plaintiff.
As late as May 21, 1934, many of the cases we have referred to were cited and approved in the case of City of Winona v. Montgomery County, 155 So. 169.
In view of section 253, Code of 1930, none of said decisions cited by appellant are authority to sustain his view.
The claim for 1930 was allowed, but the claims for 1928 and 1929, were expressly rejected.
The claims for 1928 and 1929, each being separate and independent from each other were not changed in character by the mere placing them upon the same sheet of paper nor by the order of the board because it was written upon the same sheet of paper.
There was one judgment allowing the 1930 claim and another and different judgment by the board rejecting the 1928 and 1929 claims, and by such rejection our learned friend concedes that upon such rejection the appellee should have appealed or should have filed the suit at bar which it did.
Argued orally by H.B. Greaves, for appellant, and by W.H. Powell, for appellee.
The city of Canton presented a claim to the board of supervisors of Madison county for one-half of the ad valorem bridge taxes collected on property situated within the city of Canton. The board of supervisors allowed the tax for the year 1930, but disallowed the claim for the years 1928 and 1929. The city of Canton collected the allowance for the year 1930, and did not appeal from the order of the board of supervisors disallowing the claims for the years 1928 and 1929, but filed suit in the circuit court for the amount claimed for the years 1928 and 1929.
The county pleaded res adjudicata, setting up the order of the board of supervisors allowing the claim for 1930 and disallowing the other two years as the ground therefor. The city of Canton demurred to this plea, the demurrer was sustained, and, the county not pleading further, judgment was rendered in favor of the city of Canton for the two years' taxes, from which this appeal was prosecuted.
There was also an agreed statement of facts in the record by which the above facts appeared, and in which it was agreed that the city of Canton, prior to the year 1928, notified the county that it would expect and demand one-half of the ad valorem road and bridge taxes collected on property within the city of Canton, and also agreed upon the value of the property and the amount of taxes collected thereon, and that there had been no settlement between the county and city for the city's proportionate part of the ad valorem road and bridge taxes collected for the years 1928, 1929, and 1930; and it was also agreed that the city of Canton filed its claim before the board of supervisors for said years, and that the allowance was made and paid for the year 1930, but the claims for 1928 and 1929 were rejected.
We think the court below erred in sustaining the demurrer to the plea of res adjudicata. The order of the board of supervisors allowing a judgment against the county is a judgment of a court created for that purpose, and such judgment is valid until reversed by an appellate court. Arthur, Clk., etc., v. Adam Speed, 49 Miss. 404; George County v. Bufkin, 117 Miss. 844, 78 So. 781.
It is argued here that the case of George County v. Bufkin, supra, should not be controlling here, for the reason that in the case at bar there were three separate years for taxes collected, and that they were separable controversies, and that the acceptance of the order in favor of the city of Canton should not bar the city of its right to collect for the other years; that separate suits could have been filed in reference to said matter; and that, under section 253, Code of 1930, the city could maintain its suit for the amounts disallowed.
It is true that the claims could have been presented each year for the amount due, but that was not done. Here all the claims were presented at one time as a claim against the county, and was passed on in a single order by the board of supervisors. It is unquestionably true that the city could have joined all the claims in one suit, had the entire claim been rejected by the board, but the entire claim was not rejected, but was partly paid. As stated, this constituted a judgment of the board of supervisors, and should have been appealed from had the city been dissatisfied therewith. We think, therefore, that the case of George County v. Bufkin, supra, is applicable. Had an appeal been taken from the whole judgment and the liability contested, the city would not have recovered anything, as the county did not have to divide the funds collected for bridges under a special, separate bridge levy. Panola County v. Town of Sardis (Miss.), 157 So. 579.
In addition, a party cannot accept a portion of a judgment favorable to him and appeal from that which is unfavorable in a court of law. If he accepts payment of an amount allowed, he will be bound by this as accepting the whole judgment, and an appeal, if taken, will be dismissed. Adams v. Carter, 92 Miss. 579, 47 So. 409, 16 Ann. Cas. 76; Parsons v. Rutherford, 84 Miss. 70, 36 So. 187; Kemper County v. Neville, 95 Miss. 56, 48 So. 727; 3 C.J. 679, sec. 552; 2 R.C.L., secs. 44, 45.
On the facts agreed to, as appearing in the record, the judgment of the court below will be reversed, and judgment rendered here in favor of Madison county.
Reversed, and judgment here for the appellant.