Rainey v. Marion County

The employment by the board of commissioners of roads and revenues of Marion County of an attorney at law to represent the county in a specific litigation does not constitute the attorney a county attorney. Therefore the contract of employment between the board and the attorney is one required by the Code, § 23-1701, to be in writing and to be spread upon the minutes of the board of commissioners of the county.

DECIDED JULY 16, 1940. T. B. Rainey filed suit in a justice's court against Marion County, to recover $100 alleged to be due him on open account. The plaintiff alleged, that the management and control of the county's affairs were vested in a board of commissioners of roads and revenues; and that he presented to the county, through the board of commissioners of roads and revenues, at a regular board meeting thereof, a statement of the account, and payment thereof was refused by the board. The copy of the account, attached to the petition, dated August 9, 1939, recited that Marion County is indebted to "T. B. Rainey, attorney at law, . . Dec. 19, 1938, to attorney's fees in the matter of J. R. McCorkle vs. Marion County. Injunction, $100." The county in its answer denied that it was indebted to the plaintiff, and alleged that the plaintiff was not contracted with by any person or group of persons authorized by law to represent the county. By amendment the defendant alleged that the petition failed to disclose that the contract was in writing, or had been entered on the minutes of the board of commissioners of roads and revenues of the county, as required by law.

The case was appealed to the superior court, where it was tried before the judge, without the intervention of a jury, upon an agreed statement of facts, to wit: "J. R. McCorkle filed a bill of injunction against Carlos Belk et al., as commissioners of roads and revenues of Marion County, in the Marion superior court, on December 19, 1938. Carlos Belk, as chairman of the board of roads and revenues of Marion County, Georgia, made and entered into an oral agreement with said Rainey, which was concurred in by R. P. Stevens, J. A. Tyler, and C. N. Phillips, also members of said board of commissioners. Under said oral agreement the said Rainey defended said suit as an attorney at law to the final termination of the suit. There was no written contract entered into between said Rainey and said board of commissioners of roads and revenues of Marion County, and consequently no contract was entered upon the minutes of said board. When said case was terminated said Rainey submitted a bill of one hundred dollars, for services rendered, to Dr. A. S. Boyett, Frank Brady, and W. M. Wells, who at that time and now compose the board of roads and revenues of Marion County. Payment of said bill was refused by said commissioners to whom said bill was submitted. It is further agreed that at the time of the oral agreement above referred to, between plaintiff and said commissioners, no compensation was stipulated and agreed upon to be paid said Rainey for said legal services." The judge rendered judgment for the defendant, and the plaintiff excepted.

The employment by the board of county commissioners of Marion County of an attorney to represent the board in an injunction proceeding brought against the board does not constitute the attorney a county attorney, within the meaning of the act of 1937 (Ga. L. 1937, pp. 1375, 1379), giving to such board the power and authority to select and appoint a county attorney for Marion County. The cases of Templeman v. Jeffries,172 Ga. 895 (159 S.E. 248), and Walker v. Stephens, 175 Ga. 405 (165 S.E. 99), are distinguishable from the present case. In each of those cases a county attorney was employed to represent the county generally, while in the case at bar the attorney (the plaintiff) was employed to represent the county in one case only, which did not make him the county attorney, and therefore he was not an officer. The contract of employment entered into between the county board and the attorney, not being in writing and spread upon the minutes of the board of county commissioners, as required by the Code, § 23-1701, which requires that "all contracts entered into by the ordinary with other persons in behalf of the county shall be in writing and entered on his minutes," was void and unenforceable. Murray County v. Pickering, 42 Ga. App. 739 (157 S.E. 343). Counties are not liable except when made so by statute, and the statute is positive as to how and in what way liability of a county may be fixed. Carolina Metal Products Co. v. Taliaferro County,28 Ga. App. 57, 58 (110 S.E. 331); Holliday v. Jackson County,121 Ga. 310 (48 S.E. 947). It follows that under the law and the undisputed facts the judge properly rendered judgment for the defendant.

Judgment affirmed. Sutton and Felton, JJ., concur.