Marshall County v. Jackson County , 36 Ala. 613 ( 1860 )

A. J. WALKER, C. J.

Counties are by the Code made bodies corporate, with capacity to sue and be sued; but upon the liability to be sued there is this restriction, that no suit shall be brought against a county until the claim or demand has been presented, within a prescribed time, to the court of county commissioners, and has been by such court either disallowed, or reduced and refused by the party. — Code, §§ 763, 775, 2141. The statute, in language which seems incapable of being made plainer by argument or illustration, requires, as a condition precedent to the maintenance of a suit against a county, that the claim or demand shall have either been disallowed, or reduced and refused by the party. This regulation is indispensable, in order that full effect may be giveq to another section of the Code, which requires, that claims allowed by the court of county commissioners shall be paid in the order of their presentation. — Code, §791. If, after the allowance of a claim, there should be a refusal to pay, the party ■ injured by such refusal has a remedy, whether it results from the failure to levy the proper tax, or from the tortious conduct of the treasurer.-Tarver v. Comm’rs’ Court, 17 Ala. 526; Code, § 795. After a claim has been allowed by the court of county commissioners, there is no necessity for a suit against the county, and there is a manifest propriety in prohibiting suit upon it. As the restriction upon the liability of a county to be sued, so plainly declared by the statute, is consistent with the other laws relating to the same subject, and manifestly reasonable and proper, there is not the slightest occasion for departing from the literal mandate of the law. We decide, therefore, that this suit cannot be maintained upon the pleadings and facts before us.

Judgment reversed, and cause remanded'.