Hendrick v. Posey

• Decision Date: 23 April 1898
• Citation: 45 S.W. 525,104 Ky. 8
• Parties: HENDRICK v. POSEY et al.
• Court: Kentucky Court of Appeals

45 S.W. 525

104 Ky. 8

HENDRICK v. POSEY et al.

Court of Appeals of Kentucky.

April 23, 1898

Appeal from circuit court, Franklin county.

"To be officially reported."

Suit by W. H. Posey and others against William J. Hendrick. From judgments for plaintiffs, defendant appeals. Reversed in part.

W. S Pryor, William Goeble, John W. Yerkes, and T. L. Edelen, for appellant.

John W Rodman, for appellees.

BURNAM J.

Appellant was attorney general of Kentucky from September 7, 1891 until January 6, 1895, and in his official capacity instituted suits in the Franklin circuit court in the name of the commonwealth of Kentucky against the Kentucky Midland Railway Company, and recovered judgments against that company for taxes aggregating, with interest, more than $11,000, upon which judgments executions issued which were returned "No property found." At that time there was pending in the Franklin circuit court a suit by other creditors to subject the railroad to the payment of debts due to them by the company, and appellant, acting as attorney general of the commonwealth of Kentucky, intervened in that proceeding, and set up the judgments due the state, and took the necessary steps to have the claim of the state declared a prior lien upon the railroad in the judgment directing its sale at the suit of creditors, and the railroad was sold under this judgment by appellee herein, as master commissioner of the Franklin circuit court, on January 4, 1897, and the sale was confirmed at the April term, 1897, and an order of distribution entered, directing appellee, as master commissioner, to collect the sale bonds that had matured, and out of the proceeds of the first installment bond to pay to the commonwealth the taxes adjudged to be due it; and, believing that appellant, as attorney of record for the commonwealth, had the authority to collect and receive the money, appellee, on July 21, 1897, paid to appellant the sum of $7,578.65, being a pro rata of 60 per cent. of the amount due the state, by a check payable to his order as attorney, and expressing in the face of the check that it was for taxes due the commonwealth of Kentucky. This check was deposited by appellant in the State National Bank of Frankfort, Ky. to his credit as attorney. Subsequently the auditor of the state demanded of appellee the payment of this money, and thereafter, on August 2, 1897, appellee instituted this suit against appellant to recover the money, alleging that it had been paid by him to appellant by mistake, and without authority of law; at the same time suing out a general attachment garnishing the money to the credit of appellant as attorney in the bank. On September 15, 1897, the bank answered, admitting that it had on hand to the credit of appellant the sum of $6,255.31, and avowing its willingness to pay this sum as the court might direct, and on September 28, 1897, appellant having been duly summoned and failing to answer, the court entered an order directing the bank to pay to its master commissioner, the appellee herein, the sum so reported as being in its hands to the credit of appellant as attorney. On October 2, 1897, a rule was awarded to appellee against appellant, returnable on the first day of the January term, 1898, to show cause why he should not pay into court the sum of $1,323.34, being the balance of the $7,578.65 paid to him by appellee, with interest thereon from the time he received it. On January 3, 1898, appellant offered to file his response to the rule, and at the same time tendered and offered to file an answer, which was made a cross petition and counterclaim against S. H. Stone, auditor of public accounts of the commonwealth of Kentucky, setting up, in substance, the steps which he had taken in the case of Lair against the Kentucky Midland Railway Company, and further alleging that after the expiration of his term of office as attorney general he had been employed by his successor as attorney in a number of cases in which the state was interested, then pending in the courts of the United States and the Kentucky court of appeals, involving the validity of the franchise tax under the act of 1892; that, as a result of his services in these cases and in that of the Kentucky Midland Railway, there had been paid into the treasury of the state exceeding $60,000; that by virtue of his office as attorney general, and under the laws in force at the time he assumed the duties and took the oath of office, he was entitled to 30 per cent. of the amount recovered and paid into the treasury in the case of Lair against the Kentucky Midland Railway Company; that by section 114, Ky. St., he was entitled to 30 per cent. of the amount which had been recovered and paid into the treasury in the other cases in which he was employed; that the auditor and governor had refused to pay him anything for his services in these cases, excepting an allowance of $1,500 in the case of the Western Union Telegraph Company against Norman, auditor, in the United States district court; and that he had the right to retain the funds which had been paid to him by the master commissioner of the Franklin circuit court for the satisfaction and payment of his fees against the commonwealth of Kentucky in all these cases, which exceeded $11,367.50, after crediting the state with $6,148.81; and in his cross petition against Stone, auditor, he asked that he be adjudged a lien thereon for the satisfaction of his fees, and for judgment therefor. A demurrer was sustained to the response, and the motion of appellee for a rule against Stone, auditor, was overruled, and on January 27, 1896, the court entered an order requiring appellant to pay into court the sum of $1,323.34 at or before 9 o'clock of the next morning, to the entry of which order appellant excepted, and on the next day he tendered a response, in which he said that he had executed a supersedeas bond in the office of the clerk of the Franklin circuit court, which had been approved by the clerk of that court, suspending the execution of the judgment upon the rule issued against him, and avowing a willingness to execute any other bond required by law to make the plaintiff in the case secure pending an appeal to this court, alleging that he had in good faith retained the money paid to him by the master commissioner under the belief and by the advice of his attorneys that he had the legal right to retain it until the question was finally determined upon appeal

to this court; whereupon the court adjudged that the response of appellant was insufficient, and, he having declined to respond further, it was adjudged by the court that he was in contempt of its orders, and that, in order to purge himself of such contempt, appellant must pay the sum of $1,323.34 into court, to be held by the court until the matter was finally determined; and, appellant having refused to do this, the court entered an order suspending him from practicing law before the Franklin circuit court until he should comply with the order of the court, or until it should be reversed by the court of appeals. And on this appeal we are asked to review the two...