Millikin, Treasurer, &C. v. Gillum, &C.

• Decision Date: 05 November 1909
• Citation: 135 Ky. 280
• Parties: Millikin, Treasurer, &c. v. Gillum, &c.
• Court: Kentucky Court of Appeals

Page 280

135 Ky. 280

Millikin, Treasurer, &c. v. Gillum, &c.

Court of Appeals of Kentucky.

November 5, 1909.

Appeal from Logan Circuit Court.

W. P. SANDIDGE, Circuit Judge.

Judgment for plaintiffs, defendants appeal. — Affirmed.

R. W. DAVIS and S. R. CREWDSON for appellants.

BROWDER & BROWDER for appellees.

OPINION OF THE COURT BY JUDGE HOBSON — Affirming.

The fiscal court of Logan county during its regular October term, 1905, allowed numerous claims, including one of $1,650 involved in this action. That part of the order allowing this claim is as follows: "The following claims were allowed and made payable out of the county levy for 1906: `Roads.' Flowers, J. S. Commissioner at Duncan's on Muddy River $1,650.00." Soon after the allowance of the claim, Flowers, who was a magistrate of Logan county and therefore a member of the fiscal court, procured of the clerk of the Logan county court two warrants covering the amount named; one of them being for $450 and the other for $1,200. In November, 1905, he assigned the two warrants to appellees, George L. Gillum & Son, a firm composed of George L. Gillum and Perry Gillum, engaged in the hardware business in Russellville, and received of them $1,552.40 therefor. Of the amount thus received, Flowers expended $1,108.17 in constructing an iron bridge on Muddy river, where it is crossed by the Russellville and Morgantown road near Duncan's in Logan county. Following the completion of the bridge, the appellees, George L. Gillum & Son, demanded of the appellant John W. Milliken, treasurer of Logan county, payment of each of the warrants assigned them by Flowers, but that officer refused to pay them, and appellees thereupon brought suit against him in his official capacity and against Logan county and also against J. S. Flowers to recover the $1,650 claimed to be due them upon the warrants.

The answer filed by the treasurer for himself and Logan county denies any liability on their part upon the warrants, claims that both are void for uncertainty, that the fiscal court was without power to appoint Flowers commissioner to construct the bridge, and that the assignment of the warrants by the latter to appellees was unauthorized and void, as were his acts in constructing the bridge and expending therefor such part of the money he received from appellees as was applied to that purpose. The answer of Flowers alleged the bona fides of the assignment of the warrants to appellees, and of his acts in constructing the bridge and expending therefor the money received of appellees, and also alleged that out of the balance of $444.23 he claimed was left in his hands after paying for the bridge he paid $260 for road work in the Russellville magisterial district which the fiscal court had directed him as commissioner to have done, but later refused to pay him for, and was entitled to $42 for his services in superintending the building of the bridge, and these sums, which, it was averred, he was entitled to be paid out of the $444.23, left in his hands, but $184.23, and the latter sum he was, as alleged, entitled to retain for services rendered by him as commissioner of public roads by order of the fiscal court. Responsive pleading controverting both answers was filed by appellees.

The circuit court on the issues thus made, and following the taking of proofs by the parties, rendered the following judgment, viz.: "These consolidated causes coming on to be heard upon the pleadings and testimony and the court being advised, it is now adjudged by the court that the plaintiffs, George L. Gillum and Perry Gillum, partners trading as George L. Gillum & Son, recover of the defendant, Logan county, the sum of $1,108.17, with interest thereon at the rate of 6 per cent. per annum from the 1st day of January, 1907, and two-thirds of their costs in these actions expended, for which execution may issue after 10 days. To which judgment the defendant Logan county objects and excepts, and prays an appeal to the Court of Appeals, which is granted. It is further adjudged by the court that the plaintiffs as above named recover of the defendant J. S. Flowers, the sum of $454.83, with interest thereon from January 1, 1907, until paid at the rate of 6 per cent. per annum, and one-third of their costs in these actions expended, for which execution may issue after 10 days. To all of which judgment against him the defendant J. S. Flowers objects and excepts, and prays an appeal to the Court of Appeals, which is granted. The court delivered a written opinion in these actions, which is hereby filed and made a part of this record, and these cases are hereby continued." We concur...