Simmons v. Davis
| Decision Date | 04 November 1892 |
| Citation | 25 A. 691,18 R.I. 46 |
| Parties | SIMMONS v. DAVIS, Town Treasurer. |
| Court | Rhode Island Supreme Court |
Petition for writ of mandamus by Simon W. Simmons against James Davis, town treasurer of the town of Johnston, to compel payment of an order issued in petitioner's favor on respondent by the town clerk. Petition denied and dismissed.
Edmund S. Hopkins, for petitioner.
Herbert B. Wood and William Fitch, for respondent.
In response to the order of the court to show cause why a writ of mandamus should not issue, in accordance with the prayer of the petition, the respondent makes answer under oath, in which he admits that the petitioner presented to the town council of the town of Johnston a certain account for a quantity of stone, alleged to have been sold and delivered to said town by him, and that said council, on the 11th day of February, 1892, allowed the same and ordered it paid; and also that the town clerk of said town drew an order on the town treasurer, in favor of the said petitioner, for the sum of $100, the same being the amount of said claim, which order he presented to said town treasurer, and that the latter refused to pay, and has not paid, said order. But he denies that at the time of the allowance of said account and the granting of said order the said town was indebted to said petitioner in said sum of $100, and avers that said town council erred in approving said claim, and that he is ready to maintain and prove that said town was not at said time, and is not now, indebted to said petitioner in said sum of $100, or in any other sum; that said claim is fraudulent; and that said petitioner did not sell said stone to said town, as claimed by him. The answer further sets up that June 7, 1892, the petitioner brought a suit at law against said town for the purpose of recovering the amount of his said claim, and that said suit is now pending in the court of common pleas in this county. The respondent has also presented the affidavit of Paris Mathewson, one of the committee in charge of the building of the bridge in which said stone was used, to the effect that the petitioner told said committee that the stone for which said claim is now made could be taken from his lot for the purpose of building said bridge, and that he would make no charge therefor. Said affidavit also sets out that no such quantity of stone as claimed by said petitioner, and allowed to him by said town council, was in fact taken from his lot. The...
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