Scarbrough v. Watson

140 Ala. 349

• Court: Supreme Court of Alabama
• Decided: November 15, 1903
• Status: Published

Opinion

MoCLELLAN, C. J.

A claim against a county cannot be sued and recovered on unless it has been presented to the commissioner’s court and been disallowed by that body; and the complaint must aver such presentation and disallowance.—Code, 1896, § 13; Shinbone v. Randolph, 56 Ala. 183; Schroeder v. Colbert County, 66 Ala. 137.

Recovery cannot be had in such cases on the common counts, no averment of presentation and disallowance being added. Hence it is that the case of Marengo County v. Lyles, 101 Ala. 423, was properly decided; but what is there said as to plaintiff’s remedy being by mandamus is a dictum, unnecessary to the decision of the case, and unsound, unless the question was there affected by a local statute not mentioned in the report or opinion. The remedy in such case is by action under section 13 of the Code; and, it is plain, adequate and complete. The claim involved in this proceeding is of the class dealt with by that statute. The petitioner had this plain, adequate and complete remedy by action at law; and, having this remedy, he was not entitled to a mandamus to the county commissioners to pay it.

The judgment awarding the writ must be reversed, and a judgment will be here entered dismissing the petition for mandamus.

What we have said is not to be taken as intimating any opinion upon the validity of the claim.

Reversed and rendered.