Howard v. Howard

• Decision Date: 16 December 1930
• Citation: 236 Ky. 557
• Parties: Howard et al. v. Howard.
• Court: United States State Supreme Court — District of Kentucky

Page 557

236 Ky. 557

Howard et al. v. Howard.

Court of Appeals of Kentucky.

Decided December 16, 1930.

1. Pleading. — Exhibit filed with petition to enjoin fiscal court from questioning validity of warrant was within statute requiring filing thereof as part of pleadings (Civil Code of Practice, sec. 120).

The exhibit filed with petition as a foundation for and in aid of averments and containing, as a part thereof, a written recitation of grounds forming the basis of contemplated action by fiscal court, being in fact a copy of petition filed therein on relation of county attorney, was more than evidentiary in its scope and purpose, since without the matters therein appearing circuit court would not and could not know whether or not grounds existed for interference.

2. Injunction. — Collateral prohibitive procedure by means of injunction does not lie, except when court or defendant is attempting to proceed without jurisdiction.

3. Injunction. — Petition seeking to enjoin fiscal court from questioning validity of warrant pursuant to petition filed by county attorney held demurrable (Civil Code of Practice, sec. 120).

The petition, together with exhibit filed therewith and constituting a part thereof in accordance with Civil Code of practice, sec. 120, the allegations of which were also admitted by demurrer, showed that purchasing order on which warrant was based was void on ground that certain members of fiscal court were not present at meeting, nor notified thereof, that proceedings of court at special term were not written up on minutes or record thereof, or properly signed on that day, and that transaction was fraudulent on its face by reason of exorbitant and unreasonable price paid for ground to be used for burial purposes, by reason of which fiscal court, not only had right and authority to set aside purchasing order, but duty to do so.

4. Counties. — Warrant issued by county clerk is rendered void by invalidity of purchasing order on which it was based.

Appeal from Harlan Circuit Court.

J.B. CARTER for appellants.

J.B. SNYDER for appellee.

OPINION OF THE COURT BY CHIEF JUSTICE THOMAS

Reversing.

In this action by Dr. E.M. Howard against H.H. Howard, judge of the Harlan county court, J.B.M. Howard and others, members of the fiscal court of that county, Harlan county, and the Citizens' National Bank, the plaintiff in his original petition avers, in substance: That on December 31, 1929, Harlan county, through and by its fiscal court, purchased from the plaintiff a tract of land at Rest Haven cemetery for a colored and white pauper graveyard. The tract contained 1,827 grave lots at $3 each, and the total consideration was $5,481. For that amount the fiscal court directed a county warrant to be issued on the presentation of a general warranty deed to be accepted by the county judge, and the warrant was to be paid out of the county levy for 1930. Thereupon plaintiff and his wife executed and delivered to the county their warranty deed for the property purchased. The deed was accepted by the county judge and filed for record in Deed Book 66, page 16. Thereafter there was issued to plaintiff warrant No. 319 for the sum of $5,481, payable out of the county levy of 1930, and signed by M.G. Smith, clerk of the Harlan county court. The warrant was indorsed as follows:

"1930, January 1st. Presented for payment and no funds to pay the same. This warrant bears 6% interest from date until called..

                                      "F.G. Lewis, T.H.C."
                

On the same day plaintiff sold, indorsed, delivered, and discounted the warrant to the Citizens' National Bank of Harlan for value, and the bank is now holder in due course. So far as plaintiff knows the warrant is still in the hands of the Citizens' National Bank, and no part thereof has been paid. The validity of the warrant is being questioned by the authorities of Harlan county and Harlan county, by the county attorney, J.B. Carter, who has undertaken to file before the fiscal court a petition in equity seeking to have the fiscal court make orders in relation to the warrant, and he undertakes to bring into question the validity of the warrant and thereby affect the property of the Citizens' National Bank on which plaintiff is liable as indorser. He charged that the defendants, the county judge and the members of the fiscal court, although without power and authority to do so, are threatening to, and unless restrained by the orders of court will meet on June 26, 1930, for the purpose of trying and determining matters relating to the issue of the warrant, which will throw a cloud over the title of the warrant to the irreparable damage of the plaintiff and the Citizens' National Bank. The petition concludes with the prayer that the defendant county judge and members of the fiscal court be temporarily restrained from acting on the petition, and upon final hearing the injunction be made permanent. There was filed as part of the petition a copy of the petition in equity filed before the fiscal court, which is in these words:

"HARLAN FISCAL COURT.

"Harlan County, by J.B. Carter, County Attorney, Plaintiff, v. E.M. Howard & Citizens National Bank, Defendants.

"PETITION IN EQUITY.

"J.B. Carter states that he is the regular elected qualified and acting attorney for Harlan County and brings this suit on behalf of Harlan County. He states that there was a meeting of part of the magistrates and an attempt to hold Fiscal Court meeting at the Court House, in Harlan, Kentucky, on December 31st, 1929. The plaintiff states that there was no clerk of said meeting but that the jailer attempted to take some of the minutes of said meeting; that said minutes of the Fiscal Court attempted to allow claims against the county at said meeting amounting to about $30,000,000; that one of the attempted claims was to the defendant, E.M. Howard, for the sum of $5,481.00 and said claim, No. 319 and purporting to be the consideration for about one acre of land for a pauper grave yard.

"The plaintiff states that the clerk of the county court and clerk of the Fiscal Court was busy issuing automobile tags and didn't act as clerk for the Fiscal Court but did write out the claim to the defendant for the above named sum and delivered to him on same day, December 31st, 1929. The plaintiff states that said order and claim is absolutely void and should be set aside by the court and held for naught for the following reasons:

"First: Because the orders and especially this order of the said attempted meeting of the Fiscal Court was not read to them and approved by the members of the Fiscal Court and that the order made by the clerk is entirely different and changed from the order of the minutes made by the jailer who was attempting to act as clerk for the Fiscal court.

"Second: Because this meeting of the members of the Fiscal Court on December 31st, 1929, was not a regular meeting of the said court and no act or acts of a special meeting of the members of the Fiscal Court are true or binding unless all of the members have notice of said meeting. The plaintiff states that Harlan County is divided into eight magisterial districts and on said date, to-wit: December 31st, 1929, there were eight magistrates acting as such for Harlan County and that there were only six magistrates present at said meeting and that the other two magistrates did not have any notice, knowledge or information of said meeting and were not present and by reason thereof each and all of the orders of said meeting are void and of no effect.

"Third: Because the members present at said meeting on December 31st, 1929, did not get through their business on said date and agreed to adjourn until January 2nd, 1930, to reconvene and sign up and approve the orders of the meeting of December 31st, 1929, and that said members did reconvene on said date, January 2, 1930, and all of them went in a body, with the defendant, E.M. Howard, to view and look over the acre of ground that they had attempted to purchase for pauper grave yard and after viewing the ground they returned to the court room and five of said members voted to cancel the order made to purchase said cemetery lots and two of the members present voted against same. A copy of the order is filed herewith and made a part hereof and marked `Exhibit B' and a copy of the order first attempted to buy said lot which was made by the clerk, is filed herewith and marked `Exhibit C' and a copy of the minutes attempted to be made by the jailer is filed herewith and marked `Exhibit A.' The plaintiff states that the county judge and clerk tried to persuade and insisted on the magistrates signing up and approving the orders as drawn by the clerk purporting to be the orders made at said meeting on December 31st, 1929, but that they refused to do so and thereupon the Judge and two magistrates went into the clerk's office and signed said orders without ever having same read to the court and then had a reconvening order made following his signature and the actions of the magistrates on the 2nd day of January, 1930, as recorded in the Fiscal Court order book was read to said magistrates and approved by five of them and the county judge and two of the magistrates failed and refused to sign or approve said orders. The full and complete orders made by said magistrates at their second days meeting is filed herewith and made a part hereof and marked Exhibit `D.'

"Fourth: Plaintiff states that said order is void because said Fiscal Court had no legal power or authority to make such an investment at the expense of the county or to pay such an unreasonable sum for such a small piece of ground for the purpose of a pauper grave yard; that the ground purchased and the boundary set out and described is so indefinite that it cannot be located from the boundary or description set out in the deed; that a great deal of the ground can not be used for a cemetery because of rock and cliff extending from under the ground...