Cooper v. Wait

• Decision Date: 19 May 1899
• Citation: 51 S.W. 161,106 Ky. 628
• Parties: COOPER v. WAIT, Treasurer. [1]
• Court: Kentucky Court of Appeals

51 S.W. 161

106 Ky. 628

COOPER v. WAIT, Treasurer. ^[1]

Court of Appeals of Kentucky.

May 19, 1899

Appeal from circuit court, Pulaski county.

"To be officially reported."

Action by J. S. Cooper against George W. Wait, treasurer, for a mandamus to require defendant to pay plaintiff's claim. Judgment for defendant, and plaintiff appeals. Affirmed.

O. H Waddle, for appellant.

G. W Shadoan, for appellee.

GUFFY J.

It appears from this record that appellant was the county school superintendent for Pulaski county, and that at the April term, 1897, of the fiscal court of Pulaski county the following order was entered:

"It is ordered by the court that J. S. Cooper be, and he hereby is, allowed the sum of one thousand fifty-two and xx/100 dollars, payable out of the county treasury for salary for 1896. "$1,052. N. L. Barnett, Clerk F. C. P. C."

It is agreed that said order was presented to J. A. McGee Treasurer, April 30, 1897, and numbered 994, and payment refused for the reason that the treasurer had no funds; but he indorsed the same as follows: "No. 994. April 30 'F97. J. A. McGee, Treas." It is further agreed that the appellee is the successor of said McGee in the office of treasurer, and that both of them kept a memorandum of the claims presented to them in the order of their presentment, and indorsed on the back of the warrants presented for payment that were not paid for the want of funds the number showing the numerical order in which the claims were presented and payment demanded; and the number 994 on the claim in controversy shows the numerical order in which said warrant was presented for payment, according to the memorandum kept by the then treasurer, McGee. It is further agreed that, since the appellee entered into office, he has received, and had at the time of the institution of this suit in his hands, from the general revenues of the county, the sum of $8,879.90, which should be used and paid out by him on the claims allowed by the fiscal court, certified by the clerk, including the character of claim herein referred to. It is further agreed that the funds in the hands of appellee, as treasurer, were paid to him by the sheriff of the county from collection of the county levy made for the year 1898, and that there are no funds in his hands from collections for either the year 1896 or 1897; and that there are no available means out of which to pay plaintiff's claim, except the funds now in defendant's hands. And it is further agreed that, if appellant is entitled to have his claim paid out of the revenues of the county collected and paid into the treasury in the numerical order in which it was allowed by the court or presented to and demanded of the treasurer, he is entitled to have the same paid by the defendant out of the aforesaid funds in his hands; the said funds being now available for the payment of the same, and the said claim being entitled to be paid therefrom, numerically considered. It is also agreed that the appellant had demanded of the appellee payment of the said claim, with interest from the 30th of April, 1897, until paid, and, that being refused, demanded...