The appellee was sheriff of Holmes County for the term including the years 1936 to 1939; and this is an action by him against the county to recover a balance alleged to be due him for services rendered by him to the county's circuit court and its board of supervisors during his term of office.
He was made, at the proper time, allowances by the circuit court and by the board of supervisors, for the services rendered by him, and received payment therefor. But after his term of office expired he ascertained that he had been allowed less than his statutory payments for such services.
Holmes County, at all times during the appellee's term of office, had a population in excess of 32,000, and his compensation for the services here claimed to have been rendered by him is governed by paragraphs (e), (f) and (g) of section 1804, Code 1930, whereas his previous allowances were made under chapter 201, Laws 1932, applicable only to counties of less than 32,000 in population.
The declaration is in two counts, and alleges, in substance:
1. That he was allowed, and collected, at each term of the circuit court, for the attendance of himself and one deputy thereon, $3 per day each, when he should have received therefor $5 per day each, leaving a balance due him of $2 per day for himself and one deputy for the number of days that the court was in session.
2. That he was allowed and received, at each term of the court, less than he was entitled to under paragraphs (f) and (g) of Section 1804. The total amount claimed to have been due him under this count of the declaration being $1,956. *Page 135
The second count alleges:
1. That he was allowed by the board of supervisors $3 per day for himself and one deputy in attending its sessions, when he should have been allowed, under paragraph (e) of section 1804, $5 per day for each thereof.
2. The board of supervisors has not paid him any part of the $50 per year allowed sheriffs under section 1789, for entering, serving and recording overseer's commissions, etc.
The total amount alleged to be due him in the second count of the declaration is $824.
Afterwards this declaration was amended so as to allege that the appellee had paid into the county treasury $200 by mistake, and asked for its repayment.
The county filed a plea of the general issue, gave notice thereunder, and introduced evidence to support a set-off of (1) $1,012.48 theretofore allowed by the circuit court and paid the appellee by the county for gasoline and oil used by his deputies in automobiles; (2) per diem fees allowed and paid him for the service of deputies rendered prior to the convening of the sessions of the circuit court; and (3) per diem fees allowed and paid him for the attendance of one deputy in addition to himself on sessions of the board of supervisors. Afterwards the county requested permission to withdraw its plea of the general issue, and to file a plea of res judicata, but was not permitted so to do. The case was tried without a jury, and there was a judgment for the appellee on the first count of his declaration for $1,756, and for the amounts prayed for in the second count, and in the third amended count thereof. The county appeals and there is no cross-appeal by the appellee.
The evidence supports the appellee's claim as to the number of days that he and one deputy attended the sessions of the circuit court and board of supervisors, that he was paid $3 per day for each of them, and that he had received no payments under section 1789 of the Code. No *Page 136 bill of particulars was filed by the appellee, setting forth the services rendered by him under paragraph (f) of Section 1804, and section 1789, Code 1930; and of the fees in state cases for which he claims to be entitled to payment by the county under paragraph (g) of section 1804 of the Code; the court declined to require him to file such, and he offered no evidence as to what services he actually performed thereunder.
As to the appellant's claim that the allowances heretofore made the appellee for the services here rendered is res judicata of his claim now made for additional allowances therefor, a majority of the Judges, pleading aside, are of the opinion that there is no merit therein.
Each of the allowances here made the appellee by the court below is approved either by a majority, or by three Judges of this court. Four of the Judges say that the allowances to the appellee by the board of supervisors for gasoline and oil were illegal, and should not have been made; but three of them say that having been allowed and paid him, he cannot be charged back therewith.
The reasons given by the Judges for their holdings are so diverse that no attempt will be made to state them in this memorandum.
Affirmed.