Byington v. Saline County Com'rs

• Decision Date: 10 December 1887
• Citation: 37 Kan. 654,16 P. 105
• Parties: SEYMOUR L. BYINGTON v. THE BOARD OF COMMISSIONERS OF SALINE COUNTY
• Court: Kansas Supreme Court

16 P. 105

37 Kan. 654

SEYMOUR L. BYINGTON v. THE BOARD OF COMMISSIONERS OF SALINE COUNTY

Supreme Court of Kansas

December 10, 1887

Error from Saline District Court.

JUNE 3 1885, the defendant Board of Commissioners recovered a judgment against plaintiff Byington, who brings the case here. The opinion states the facts.

Judgment affirmed.

Seymour L. Byington, plaintiff in error, for himself.

Joseph Moore, county attorney, for defendant in error; W. P. Quinby of counsel.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

Seymour L. Byington brought an action, before a justice of the peace, against the board of county commissioners of Saline county, alleging that on the 28th of June, 1868, the county treasurer of Saline county erroneously sold a forty-acre tract of land for taxes, and that on November 27, 1872, the county sold and assigned a certificate of the sale to him on payment of $ 21.58, and that afterward he demanded, and the county clerk refused to make, a deed on the certificate, basing his refusal on the ground that the sale was illegal. He then alleged that --

"He offered to return said certificate to the county treasurer of said county, and demanded a return of said purchase-money with statutory interest, and said treasurer refused to make said restitution, (said money, as it was alleged, not then being in the treasury of the county, but having been, by the acts and order of the board of county commissioners and county treasurer, appropriated and paid out and expended by and for said county of Saline;) whereupon said plaintiff went before said board of county commissioners and asked said board for an order for the payment of said sum of money and interest, which last request was refused."

He obtained a judgment against the county board before the justice of the peace, and an appeal was taken by the board to the district court. There Byington, upon an order of the court, amended his bill of particulars, and made a more specific statement in relation to the time when he demanded a deed from the county clerk, and of the time he demanded of the county treasurer that the money be refunded; and it is alleged that the treasurer based his refusal on the ground that he had orders to that effect from the county board. A general demurrer was filed against the amended bill of particulars, which was sustained. Byington then applied for leave to amend the bill of particulars, and to make a new party defendant, which application was refused; and he comes here asking a reversal for several reasons.

I. The first ground is, that the court permitted the defendants to demur to the bill of particulars without withdrawing their answer, and also in determining the demurrer while the answer remained on file. The point is raised here for the first time, and cannot be considered. The case is brought here to review and correct alleged errors committed by the district court, and not to decide questions which were not considered by that court. Again, it does not appear from the record that an answer was filed by the board of county commissioners, either before the justice of the peace, or in the district court.

II. The next point raised by plaintiff is, that the court erred in sustaining the defendants' motion requiring the plaintiff to make a more specific statement of facts; first, because it was made after answer; and second, because the statements demanded were immaterial and frivolous. In respect to this point we need only say that no answer was filed, and that if the statements required were immaterial, no prejudice could result to the plaintiff.

III. The sustaining of the demurrer to the plaintiff's bill of...