Allen v. Commissioners of Muddy Creek Drainage District, 175 N.C. 190 (1918)

March 13, 1918 · Supreme Court of North Carolina

175 N.C. 190

W. K. ALLEN et al. v. COMMISSIONERS OF MUDDY CREEK DRAINAGE DISTRICT.

(Filed 13 March, 1918.)

.1. Drainage Districts — Necessary Expenses — Judgments—Mandamus—Assessments.

A judgment against a drainage district for necessary service rendered by the drainage engineers in its formation and given after the completion of its organization is enforcible by mandamus to compel the levy of an assessment upon the lands in the district for that purpose, irrespective of whether the commissioners have directed an issuance of bonds for the expenses of the districts.

2. Drainage Districts — Summons—Pleadings—Admissions—Judgments—Es-toppel.

Summons issued against the individual commissioners of a drainage district and “the board of drainage commissioners,” with allegation that it is “a corporation duly created, organized, and existing under and by virtue of the drainage laws of the State of North Carolina,” is an action against such district; and where this allegation is admitted and judgment rendered against it, the corporation is estopped, in proceedings for mandamus to enforce the judgment, to set up any defense which might have been raised in the former action.

Appeal by defendants from Stacy, J., at January Term, 1918, of ' DupliN.

Tbis was an action by tbe plaintiffs, drainage engineers, wbo performed services and incurred necessary expenses for tbe defendant corporation both before and after its organization. These services were necessary to tbe establishment of said district before tbe prayer of tbe landowners could be granted by tbe court creating tbe district. Tbe plaintiffs have obtained judgment for. tbe sums due them, but tbe corporation commissioners and tbe owners of tbe land in said district have failed and refused to pay such judgment.

Tbis proceeding is for a mandamus to compel tbe drainage commissioners to levy an assessment upon tbe lands in said district for that purpose. Tbe court signed judgment of mandamus and tbe defendants .appealed.

Stevens c& Beasley and O. D. Weeks for plaintiffs.

JE. K. Bryan for defendants.

Clark, C. J.

The court properly directed a mandamus to issue to the drainage commissioners to levy an assessment upon the lands in said district to pay off the judgment due the plaintiffs. The judgment having been rendered against the commissioners of said drainage district, it is not an open question that it is an obligation of said district and the proper method is to compel the levy of an assessment to pay off the judgment.

Had these expenses been incurred for the formation of a district, whose organization was not completed, it may be that the plaintiffs would have been restricted to the petitioners at whose instance they had done the work. But in this case the proceeding eventuated in the organization of the corporation and, further, there has been a judgment rendered against said corporation for the indebtedness. The defendants put up the defense that they have not directed the issuance of bonds whereby money can be raised for such purpose. It is not necessary that such bonds should be issued. That is a matter for the corporation, but if it does not choose to issue the bonds, it is, open to the plaintiffs to proceed to have an assessment ordered upon the lands in said district to' raise a fund for the payment of this judgment.

The corporation was a party defendant to the judgment and also to this proceeding. The summons is against G. B. D. Parker, N. H. Williams, and O. W. Quinn, and the Board of Drainage Commissioners of Muddy Creek Drainage District. Paragraph 2 of the complaint avers that the “Board of Drainage Commissioners of Muddy Creek Drainage District is a corporation duly created, organized, and existing under and by virtue of the Drainage Law of the State of North Carolina, and that G. B. D. Parker, N. H. Williams, and 0. W. Quinn are the duly elected and appointed drainage commissioners of said drainage district.” This allegation is made and admitted in the answer to the action in which the judgment was obtained and also in this proceeding for a mandamus. The corporation is a defendant. Jones v. Comrs., 85 N. C., 278.

The court found the facts and properly held that the defendants are estopped in this proceeding to set up any defense which might have been raised in the action in which judgment on the indebtedness was rendered, and that the lands in said district are subject to an assessment for the payment of said indebtedness and ordered that the drainage commissioners should levy and cause to be collected a sufficient assessment upon the lands within the bounds of said district for the payment of the judgment.

Affirmed.