Opinion
1 Div. 63.
December 7, 1939. Rehearing Denied January 25, 1940.
Appeal from Circuit Court, Monroe County; F. W. Hare, Judge.
Barnett, Bugg Lee, of Monroeville, for appellants.
Demurrer to the complaint should have been sustained. Distinct causes of action should be stated in separate counts. Code, § 9531(7); Louisville N. R. Co. v. Smith, 222 Ala. 618, 133 So. 905; Worthington v. Davis, 208 Ala. 600, 94 So. 806; Sibley v. Barclay, 14 Ala. App. 422, 70 So. 201; Birmingham R., L. P. Co. v. Nicholas, 181 Ala. 491, 61 So. 361. Pleas alleging that previous payments claimed by plaintiff were paid without warrant of law and were therefore proper subject of recovery by the County constitute a complete defense to this suit. Weakley v. Henry, 204 Ala. 463, 86 So. 46; Mobile County v. Williams, 180 Ala. 639, 61 So. 963; Hamilton v. Jefferson Co., 209 Ala. 517, 96 So. 628; Ensley Motor Car Co. v. O'Rear, 196 Ala. 481, 71 So. 704; Disheroon v. Brock, 213 Ala. 637, 105 So. 899. It was error to admit, without limitation, a portion of the report of the Examiner of Accounts. Such report is not evidence of the conclusion therein stated that Thompson had been previously paid for the claims sued on. Code 1923, § 746; Brandon v. State, 27 Ala. App. 321, 173 So. 240; Hurst v. Kirby, 213 Ala. 640, 105 So. 872. The burden was upon the county to show illegality of the claims sued on. 15 C.J. 509, 663. The Board of Revenue speaks through its recorded proceedings, and if these do not prove the previous payments alleged, plaintiff then has wholly failed to prove its allegations. Poyner v. Whiddon, 234 Ala. 168, 174 So. 507; Walker County v. Burdeshaw, 232 Ala. 621, 169 So. 227; Mobile County v. Maddox, 195 Ala. 336, 70 So. 259. Tax assessors are required to make Lot Books and Plat Books, for which they are to be paid a reasonable compensation. Gen.Acts 1923, p. 178, §§ 46, 47; Gen.Acts 1931, p. 671. There was a fatal variance between the allegations and the proof.
C. L. Hybart, of Monroeville, for appellee.
An action on a bond on several distinct breaches can be laid in the same count. Ala. Code 1928, § 9462; Sloss Iron Steel Co. v. Macon County, 111 Ala. 554, 20 So. 400; Flournoy Epping v. Lyon Co., 70 Ala. 308; Coleman v. Pike County, 83 Ala. 326, 30 So. 755, 3 Am.St.Rep. 746; 9 C.J. 104; 11 C.J.S. 486. The pleas do not deny the allegation that Thompson had already been paid for his services, and present no defense. 46 C.J. 1038. The report of the examiner was prima facie evidence of what it charged. Ala. Code 1928, § 746; Code Supp.1936, § 751(1) (3); Hurst v. Kirby, 213 Ala. 640, 105 So. 872. There was no variance. "Plat books" and "Lot books" are synonymous terms. See Gen.Acts 1931, p. 671.
The suit was rested on the liability of the tax assessor's official bond for alleged illegal payments made to or secured by that official from the county.
The complaint, in one count, sought recovery for separate alleged breaches of said official bond. This form of pleading in such a case was within the terms of the statute to prevent prolixity. Michie's Code, § 9462; Sloss Iron Steel Company v. Macon County, 111 Ala. 554, 20 So. 400; 9 Corpus Juris, p. 104; 11 Corpus Juris Secundum, Bonds, § 109, page 486. There was no error in overruling demurrer to the complaint.
The demurrers to pleas 3, 4 and 5 are well taken and the trial court was without error in said respective rulings. Neither of these pleas denied the fact of overpayment or illegal or prior payments in question.
There was no error of the trial court in admitting in evidence, over the objection of defendant, the report of the State Examiner, the several warrants charged as illegally collected by the official, and the orders of the board of revenue relating thereto. The relevant portions of the State Examiner's report was within the statute as prima facie evidence of what was charged. Michie's Code, § 746; Hurst et al. v. Kirby, 213 Ala. 640, 105 So. 872. It is noted of the statute that such reports "shall be public records and shall be prima facie evidence of what they charge." See also Acts of 1931, p. 604, Acts 1935, p. 602, Michie's Code Supp. 1936, §§ 752(1), 752(3).
There was no variance in the allegations of the complaint, as within the meaning of the law, "Plat Book" and "Lot Book" are synonymous words. Compensation is provided for county officers for the making of such books. General Acts of 1923, p. 178, §§ 46, 47, amended by General Acts of 1931, p. 671.
We find from the record no reversible error in allowing the state's witness Taylor to testify as to the physical condition of the county claims in question. As we understand the record, it was a part of the res gestae of the act of collection or payment of the claim.
As there is no reversible error to be found in the record, it follows that the judgment of the circuit court should be and is affirmed.
Affirmed.
BOULDIN, BROWN, and FOSTER, JJ., concur.