Covington County v. Morris

Holden, J., delivered the opinion of the court. This case is here for the second time on appeal. See Morris v. Covington County, 118 Miss. 875, 80 So. 337. Morris, as an abutting landowner, sued the county for damages for vacating and abandoning a certain public road running through his farm near the town of Seminary. Upon the second trial in the lower court, the instant appellee, Morris, recovered judgment for damages against the county, from which this appeal is prosecuted. The declaration alleges that the appellee presented his claim to the board of supervisors and it was disallowed, before filing suit. This allegation was made in pursuance of the requirement of section 311, Code of 1906,' section 3684, Hemingway’s Code, which reads as follows: “A person having a just claim against any county shall first present the same to the board of supervisors thereof for allowance; and, if the board shall refuse to allow it, may appeal from the judgment of the board to the circuit court, or may bring suit against the county; and, in either case, if such person recover judgment, the board of supervisors shall allow'the sámé, and a warrant shall be issued therefor.” The allegation that the claim was first presented and disallowed by the board was not denied by special plea [501] of the defendant, but a plea of the general issue was filed, and upon this plea the case was tried upon its merits, which resulted in the court granting a peremptory instruction to find for the plaintiff as to liability. At the conclusion of the plaintiff’s testimony, the court overruled a motion by defendant to exclude, and also refused to grant a peremptory instruction for the defendant county after all of the testimony was submitted. No effort .was made by the plaintiff bielow to specifically prove that the claim was first presented to and disallowed by the board. The appellant contends that the failure of the appellee to prove the allegation of presentment and disallowance by the board was fatal error for which the judgment should be reversed. The appellee in answer to this contention urges that it was unnecessary for the plaintiff to prove the allegation that the claim was presented and disallowed by the board because it was not denied by a special plea, and that the plea of the general issue was not sufficient to put the allegation in issue and require the plaintiff to prove it; that it was the duty of the defendant to specially deny and disprove the allegation, and failing to do so cannot now complain; that the defendant waived the necessity of the plaintiff making this proof because it failed to point out the necessity as a reason to the court for requesting a peremptory instruction for the defendant; that, if he is mistaken in these conclusions, then he contends that there is sufficient testimony in the case showing that the claim was first presented and disallowed by the board. "When the motion by the defendant to exclude and the request for the peremptory instruction was asked, it was not incumbent upon the defendant to point out specifically the reasons upon which he based the request. The requests for the peremptory instructions presented the question and raised the point as to whether or not the plaintiff below had proved his case in.all of its essential requirements. [502] The allegation of the declaration that the claim had been first presented and disallowed (by the board was a necessary allegation and should have been proved by testimony before a recovery could be had against the county. It was essential to establish this fact as a condition precedent before a suit could be maintained against the board. Without the statute no suit against the board could be maintained, and, since the statute provides that the claim must first be presented before suit, it is clear that this material fact must be established by the plaintiff before he has the right to sue given by statute. Jackson v. Monroe County, 120 Miss. 125, 81 So. 787. The plea of the general issue was a denial of the essential allegations in the declaration; and, as the allegation of presentment and disallowance by the board was thus denied, it was incumbent upon the plaintiff to prove the necessary fact as alleged. As to the contention of the appellee that there is sufficient proof in the record to show that the claim was first presented and disallowed by the board, we have carefully read the record and are unable to find it. Our search in this direction has been thorough. We have read the parts of testimony pointed out by the appellee, and have patiently endeavored to put together and construe this testimony so as to find that it substantially tended to establish the alleged fact of presentment and refusal of the claim; but, viewing it liberally and in its most favorable aspect, it seems to us that' it is insufficient to establish the alleged fact. It appears that counsel made no specific effort to prove this essential allegation in the declaration, for the reason perhaps of a mistaken idea as to the burden of proof in the case. We are unable to supply this lack of proof after a diligent search of the record, and, as the error committed is a substantial one, we must reverse the case. The error pointed out for which we must reverse is substantial for at least two good reasons: The failure [503] to make the proof of the essential allegation was contrary to the express provision of the statute which gives the right to bring the suit; and the failure of the.appellee to make the proof was contrary to the purpose and intent of the statute, in that the provision is for the protection of the county and board of supervisors as against litigation, and to give it an opportunity to pass upon and adjust all claimls against the county before-suit can be filed for recovery. So far as this record discloses, we are bound to say that the board of supervisors in this case were denied the opportunity to pass upon and adjust this claim before suit was filed. The claim may have been in fact presented and ‘ disallowed by the board before this suit was filed, but that fact does not appear from this record, which we have carefully searched with the purpose of finding proof of it, if possible, so that the judgment, which otherwise may be regular, would not have to be disturbed by reversal. The judgment of the lower court is reversed and the case remanded for a new trial. Reversed and remanded.