Kelly v. Wimberly

Chalmers, J., delivered the opinion of the court. Plaintiff below had his account against the town audited and allowed by the town council. By his former case — Wimberly v. Ross, 60 Miss. 345 — he obtained a warrant on the town treasurer from the mayor. The treasurer declines to pay the warrant solely on two grounds — first, that there has been no precedent judgment at law on the claim; second, that he, himself, though he is in office unmolested, has never given any bond and is therefore only an officer de facto. As to the first point, we hold that the claim being for a certain and ascertained amount, the audition and allowance by the town council is equivalent to a judgment at law, no real objection to that account being now made. In the case of State Board of Education v. West Point, 50 Miss. 638, the amount of the claim was unknown, and therefore a precedent judgment at law was required. It is too clear for argument that appellant cannot remain undisturbed in office and claim that he is not a de jure officer. While in office he can be compelled to perform every [551] official act in behalf of another which the' duties of such an office dictate. State v. Fortenberry, 56 Miss. 285; State v. McIntyre, 3 Iredell (N. C.) 171. Affirmed.