Gregory v. Franklin-Simpson County Bd. of Ed.

• Court: Kentucky Court of Appeals
• Writing for the Court: VAN SANT, Commissioner.
• Citation: Gregory v. Franklin-Simpson County Bd. of Ed., 194 S.W.2d 961, 302 Ky. 404 (Ky. Ct. App. 1946)
• Decision Date: 26 February 1946
• Parties: GREGORY v. FRANKLIN-SIMPSON COUNTY BOARD OF EDUCATION, et al. ROBERTSON v. FRANKLIN-SIMPSON COUNTY BOARD OF EDUCATION, et al.

194 S.W.2d 961

302 Ky. 404

GREGORY v. FRANKLIN-SIMPSON COUNTY BOARD OF EDUCATION, et al.

ROBERTSON v. FRANKLIN-SIMPSON COUNTY BOARD OF EDUCATION, et al.

Court of Appeals of Kentucky

February 26, 1946

As Modified on Denial of Rehearing May 24, 1946.

Appeal from Circuit Court, Simpson County; E. J. Felts, Judge.

Action by I. J. Gregory and by H. A. Robertson against Franklin-Simpson County Board of Education, and others to enjoin the levy of an additional property tax. From a judgment dismissing the petitions plaintiffs appeal. The cases were consolidated.

Reversed for further proceedings.

Rodes K. Myers and Leland H. Logan, both of Bowling Green, for appellants.

J. Lee Moore, A. B. Crow, Joe P. Clark, and E. P. Hatter, all of Franklin, for appellees.

VAN SANT, Commissioner.

Alleging certain irregularities in the calling and conducting of an election for the purpose of ascertaining the sense of the voters in East School Sub-District and West School Sub-District, in Simpson County, on the question of laying an additional levy of Fifty Cents (50¢) per One Hundred Dollars ($100) valuation of taxable property in the Districts appellants filed these actions seeking injunctions prohibiting the levy of the tax. Appellees filed special and general demurrers to the petitions, and without waiving either, filed their answers. The cases were consolidated submitted upon the special demurrers, and the Court entered the following order, from which these appeals have been taken:

'These two actions being heard on the special demurrer of the defendants, and the court considering the entire record in this cause in each of said causes is of the opinion and therefore adjudges that the special demurrer to plaintiffs petition be sustained and that the petition in each of said causes be dismissed. Whereupon came counsel for plaintiffs and moved the Court for five days within which to file an amended petition. The Court overruled said motion to which the plaintiffs objected and excepted.

'The Court is of the further opinion since reading the entire record that the questions involved in the petition as to the defendants named in the petition is a moot question they having performed and done the things complained of prior to the filing of the petition. To the ruling of the Court, the plaintiffs except for the reason the Court considered the allegations in the defendants answer, and the exhibits filed therewith on reaching his conclusion to sustain the special demurrer.

'To all of which rulings of the Court, the plaintiffs object and except and pray appeal to the Court of appeals, which is granted plaintiffs.

'The plaintiffs shall execute bond for costs and proceed as expeditiously as possible but not to exceed fifteen days in forwarding the record to the Court of Appeals, and the Court requests the Appellate Court when appeal is filed to advance same and pass on same as expeditiously as same may be practicable with the Appellate Court.'

The cases have been consolidated in this Court, and the first question for determination is raised by a motion to dismiss...