Commissioners' Court of Tallapoosa Co. v. Tarver

STONE, J. A case between these parties, instituted for the same purpose for which this proceeding was instituted, has heretofore been in this court, and legal principles were then settled which must govern this case. — Commissioners’ Court of Tallapoosa v. Tarver, 21 Ala. 661. Those principles need not be here repeated. In the petition for mandamus, the following language occurs : “ Tour relator would further show unto your Honor, that all of said notes were paid off and fully discharged, except the last one, which was for the sum of thirty-five hundred dollars ; which said payments of said notes were made by the said commissioners aforesaid out of effects and assets belonging to the said county, arising from the sale of town-lots in the town of Dadeville; and part of the last note for thirty-five hundred dollars was also paid by said commissioners in the same way, and from the same source.” The petition then proceeds to state, that a balance of said note for thirty-five hundred dollars, amounting to over two thousand dollars, was paid by relator out of his private funds; and he instituted these proceedings to obtain reimbursement of the sum thus alleged to have been paid. The answer sets forth, “ that the several sums of money set out in said application were paid by the said Tarver out of moneys arising from the sale of town-lots in the town of Dadeville by the court-house commissioners of Tallapoosa county, and not out of the individual and private funds of the said Tarver.” The petition for mandamus, in its general frame and purpose, shows that the proceeds of the sale of the town-lots in the town of Dadeville, were trust funds for the erection of a court-house and jail for said county; and, viewed in connection with the answer above copied, we hold that the relator’s claim is met and negatived, with the “ degree of certainty” requisite in such cases. — Commissioners’ Court of Tallapoosa v. Tarver, 21 Ala. 668. Whether any of the other answers are sufficient we need not inquire. If the answer be false, the relator is not without remedy. See 21 Ala. 661. [417] The judgment of the circuit court is reversed, and judgment here rendered dismissing the writ. Rice, C. J., not sitting.