Bradley v. City of Georgetown

• Decision Date: 07 October 1904
• Citation: 118 Ky. 735,82 S.W. 303
• Parties: BRADLEY v. CITY OF GEORGETOWN.
• Court: Kentucky Court of Appeals

82 S.W. 303

118 Ky. 735

BRADLEY v. CITY OF GEORGETOWN.

Court of Appeals of Kentucky.

October 7, 1904

Appeal from Circuit Court, Scott County.

"To be officially reported."

Action by A. M. Bradley against the city of Georgetown. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

V. F Bradley and J. F. Asken, for appellant.

Jas. B Finnell, Jr., for appellee.

BARKER J.

The appellant, A. M. Bradley, was elected treasurer of the city of Georgetown, Ky. at the general election in November, 1901. The canvassing board awarded the certificate to his opponent George C. Wolfe. A contest before the board of contest resulted in favor of Wolfe, as did also an appeal to the Scott circuit court. On appeal to this court, the judgment in favor of Wolfe was reversed, in December, 1902. A petition for rehearing was filed, which was overruled in April, 1903 at which time the mandate issued. Upon the filing of the mandate in the lower court, a final judgment was entered in favor of appellant, and he was then inducted into office, and has occupied it since. Wolfe occupied appellant's office for one year, three months, and twenty-one days. The salary, as fixed by law, is $600 per annum, payable monthly. During the time Wolfe was de facto treasurer, he was paid the sum of $786.67. He is now insolvent, and appellant instituted this action to recover from the city of Georgetown the salary paid to him during the period mentioned. The petition sets out the facts as herein narrated. A general demurrer was filed by the municipality, which was sustained by the court, and the petition dismissed. This judgment appellant seeks to reverse.

Counsel for appellant concedes that, in the case of Nall v Coulter, Auditor. 78 S.W. 1110, 25 Ky. Law Rep. 1891, all of appellant's case was decided adversely, except in this: he contends that after the case against Wolfe was reversed, in December, 1902, the municipality had no right to pay over to the incumbent the salary, and that he is entitled to recover so much of it as was paid after that time. To this we cannot agree. The filing of the petition for rehearing within the time allowed by law suspended the issuance of the mandate, and the judgment of reversal did not become final until the petition was overruled. Civ. Code Prac. § 760; Cline v. Wrightson, 7 Ky. Law Rep. 215. Subsection 12, § 1596a, Ky. St. 1903, which regulates election contests, after prescribing the...