Livingston v. McCarthy
| Decision Date | 09 February 1889 |
| Parties | CHANCELLOR LIVINGSTON v. T. MCCARTHY, as Auditor of State |
| Court | Kansas Supreme Court |
Plaintiff's peremptory writ denied.
THE opinion, filed at the session of the court in February, 1889 states the material facts. Recommended that the peremptory writ be denied, and action be dismissed at cost of plaintiff.
S. A Haseltine, for plaintiff.
S. B. Bradford, attorney general, Geo. J. Barker, and Edwin A. Austin, for defendant.
OPINION
This is an action of mandamus, brought in this court by Chancellor Livingston against T. McCarthy, as auditor of state of the state of Kansas, to compel him to issue to said Livingston a certificate of indebtedness, under the provisions of chapter 180 of the Laws of 1887. Plaintiff alleges that under the provisions of chapter 103 of the Laws of 1875, there was awarded to plaintiff, for loss sustained by the invasion and burning of Lawrence by guerrillas, $ 1,840, and that by chapter 180 of the Laws of 1887 the state of Kansas assumed the payment of said claim; that said auditor was directed and required to issue to claimants whose claims were allowed by said commission, certificates of indebtedness, upon demand, and that plaintiff made due demand for such certificate, but that said auditor had refused to issue the same; to which petition the auditor filed an answer, alleging as a reason for his failure to issue the certificate, as alleged in plaintiff's petition, that he had been restrained by injunction proceedings in the district court of Shawnee county, at the suit of F. W. Marsh against the defendant and plaintiff herein and S. A. Haseltine, and that the said injunction was in full force against defendant, restraining the issuance of said certificate to plaintiff. Upon these pleadings the cause is submitted.
By the answer the allegations of the petition are admitted, and the only question is, has the auditor set up such an excuse as will prevent the peremptory writ from issuing against him? By the answer the fact is shown that Marsh, the plaintiff in the injunction proceedings, is claiming some right in the certificate in question, adverse to the interest of the plaintiff in this action, and the answer of the defendant sufficiently notifies the plaintiff of what that interest may be. If Marsh is claiming some interest adverse to the...
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...was a necessary party. (Stethem v. Skinner, 11 Idaho 374, 82 P. 451; Cassatt v. Board of Commrs., 39 Kan. 505, 18 P. 517; Livingston v. McCarthy, 41 Kan. 20, 20 P. 478; State v. Akers, 92 Kan. 169, Ann. Cas. 1916B, 140 P. 637; State v. Cranney, 30 Wash. 594, 71 P. 50; Powell v. People, 214,......
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