Commonwealth v. Tilton

• Decision Date: 06 December 1899
• Citation: 54 S.W. 11
• Parties: COMMONWEALTH, to Use of BUCKLER et al., v. TILTON et al. [1]
• Court: Kentucky Court of Appeals

54 S.W. 11

COMMONWEALTH, to Use of BUCKLER et al., v. TILTON et al. ^[1]

Court of Appeals of Kentucky.

December 6, 1899

Appeal from circuit court, Robertson county.

"Not to be officially reported."

Action by the commonwealth, for the use of Winfield Buckler and others, against N. A. Tilton and others on the bond of N. A Tilton as county judge. Judgment for defendants, and plaintiffs appeal. Reversed.

Winfield Buckler, for appellants.

Kennedy & Williamson and Swinford & Osborne, for appellees.

WHITE J.

Heretofore an action was brought by the commonwealth, for the use of Winfield Buckler and all the taxpayers of Robertson county against appellee Tilton, on the identical cause of action presented herein. The circuit court sustained a special demurrer thereto, and upon appeal that judgment was affirmed. Com. v. Tilton (Ky.) 48 S.W. 148, and 49 S.W. 2. After the affirmance of that judgment by this court, Buckler for himself and the other taxpayers, addressed a note to the county judge and each justice of the peace composing the fiscal court of Robertson county, requesting those officers to at once take necessary steps, and order an action to be brought against appellee Tilton, describing therein the cause of action. After waiting a reasonable time for the fiscal court to act, and that body failing, this action was brought. The county of Robertson and the several officers composing the fiscal court are made parties defendant, as well as Tilton, the real defendant. The facts set forth in the former action are again set out in this petition, wherein is pleaded a right of recovery; and there is also pleaded the notice to the county officials and the failure of the fiscal court to order or authorize the action to be brought in the name of the county of Robertson. A special demurrer as to the right of appellant to maintain the action was again sustained, and the action dismissed for that reason; hence this appeal.

In the response to a petition for rehearing in the former action (49 S.W. 2) this court said: "The fiscal court in this matter, like a board of directors, have the exclusive right to control, but, upon refusal to act, a party aggrieved, like a stockholder, may institute action." We are of opinion that by the petition herein (in which the members of the fiscal court as well as the county of Robertson are made defendants, and each one served with process) there is shown such a refusal to act by the proper...