Commonwealth v. Norman

• Decision Date: 25 March 1899
• Parties: COMMONWEALTH v. NORMAN et al. [1]
• Court: Kentucky Court of Appeals

50 S.W. 225

COMMONWEALTH v. NORMAN et al. ^[1]

Court of Appeals of Kentucky.

March 25, 1899

Appeal from circuit court, Franklin county.

"Not to be officially reported."

Action by the commonwealth against L. C. Norman and M. S. Barker to recover money illegally paid to M. S. Barker pursuant to a conspiracy between defendants. Judgment for defendants, and plaintiff appeals. Reversed as to defendant Barker.

John Young Brown, R. P. Jacobs, and W. S. Taylor, for the Commonwealth. Helm, Bruce & Helm and W. S. Pryor, for appellee Barker. Wm. Lindsay and Wm. Goebel, for appellee Norman.

WHITE J.

This action was begun in the Franklin circuit court by the appellant against the appellees, L. C. Norman, formerly auditor of appellant, and M. S. Barker, auditor's agent for Jefferson county, appointed under act of April 29, 1880. The material averment of the petition reads: "Plaintiff charges that the defendants, Norman and Barker, with the fraudulent intent and purpose of converting to their own use moneys and funds belonging to plaintiff, and of wrongfully depriving plaintiff thereof, entered into a fraudulent conspiracy and combination, in pursuance of which defendant Barker made a false pretense, and claimed that he, as auditor's agent as aforesaid, was entitled, as against plaintiff, to a commission of twenty per cent. on the said several sums collected and paid into plaintiff's treasury by said clerk of the Jefferson county court. In further pursuance of said conspiracy, said Norman, as auditor of the commonwealth, drew his several warrants on plaintiff's treasury, and caused to be paid to defendant Barker, for and on account of the alleged commission of twenty per cent., the following sums; ***; and these several sums aforesaid were caused by said Norman to be paid to defendant Barker from and out of, and were drawn and received by defendant Barker from the said treasury of plaintiff, on or about the dates aforesaid, under and in pursuance of said false claim and pretense that said Barker, as auditor's agent of Jefferson county, was entitled to a commission of twenty per cent. on said several sums collected on said account and paid into the treasury by said clerk of the Jefferson county court; and which pretense and claim was well known to defendants, and to each of them, to be false, and without right in law or equity; and which several sums so paid to said Barker said defendants wrongfully deprived said plaintiff of and converted to their own use." To this allegation above, appellee Norman made this answer, after admitting that the sums were paid: "The defendant denies, as unqualifiedly false and infamous, the statement that he entered into any combination or conspiracy with the defendant Barker, or with any one else, to pay the said commissions, or to defraud the state, in any manner or form whatever, or that he received, directly or indirectly, any part of the commissions paid said defendant Barker." In a separate paragraph appellee Norman pleads contemporaneous construction of his predecessor in office, and of the attorney generals, both the one in office and his predecessor, for a period of 10 years, and that he acted in good faith and with due diligence, and upon an honest belief that Barker was entitled, under the act of April 29, 1880, to claim and receive the several sums so paid, and that under the act Barker was entitled to the sums so paid. The appellee Barker, in a separate answer, denied the charge of combination or conspiracy; denied that the claims paid him were false, fraudulent, or wrongful. In a separate paragraph is pleaded contemporaneous construction and the opinions of the attorney general for 10 years. In still another paragraph it is alleged that all the sums admitted to have been paid were received by appellee Barker alone, and that Norman co-defendant, did not receive, directly or indirectly, any part of same, or directly or indirectly, receive any benefit from the same. Barker also pleaded that under the act of April 29, 1880, he was entitled to the sums so paid him. Both general and special demurrers were filed to both answers and to each paragraph therein. The court sustained those demurrers to those paragraphs in each answer that pleaded that Barker was entitled to the sums under the act of April 29, 1880, and that pleaded contemporaneous construction or the opinion and advice of the attorney general; but overruled the demurrer to the denial of the conspiracy and combination to defraud, and the denial of the alleged acts in furtherance of the conspiracy and combination. To the rulings of the court on the demurrers all parties reserved exceptions to the rulings against them. After the court had passed on the demurrers, the appellant offered to file an amended petition No. 4, to the filing of which appellees objected, and the objection was sustained, and the amendment was not permitted to be filed. A memorandum by the clerk on the transcript shows that he has copied this amendment in the record, but there is no reference to it in the bill of exceptions, it is made no part thereof, and there appears no order of court making it a part of the record of the case. The only reference to this amendment No. 4 is the order refusing to permit it to be filed. For the reason that this amendment is not made part of the record by any order of court or bill of exceptions it will not be considered, upon the authority of Young v. Bennett, 7 Bush, 476.

Both before and after the jury was sworn appellant moved the court for judgment on the pleadings, as they remained after the demurrers were sustained, as against both appellees, and against each one separately. These motions the court overruled, and exceptions were reserved. At the conclusion of the evidence for appellant, the court gave a peremptory instruction to find for the defendants, which the jury did. Appellant moved for judgment against both the appellees, and against each separately, notwithstanding the verdict; which the court declined to render, but dismissed the petition absolutely. After appellant's motion for new trial was overruled, this appeal was prosecuted.

We are of opinion that, under the law providing for the appointment of auditor's agents, the appellee Barker was not entitled to the commission of 20 per cent. on license taxes received...