McCarthy v. Marsh

• Decision Date: 09 February 1889
• Citation: 20 P. 479,41 Kan. 17
• Parties: T. MCCARTHY, as Auditor of State, v. F. W. MARSH
• Court: Kansas Supreme Court

20 P. 479

41 Kan. 17

T. MCCARTHY, as Auditor of State, v. F. W. MARSH

Supreme Court of Kansas

February 9, 1889

Error from Shawnee District Court.

THE opinion states the case. Judgment for plaintiff Marsh, on June 25, 1888. The defendant McCarthy brings the case here.

Judgment reversed and remanded.

Edwin A. Austin, for plaintiff in error.

Geo. J Barker, for defendant in error.

CLOGSTON C. All the Justices concurring.

OPINION

CLOGSTON, C.:

This was an action brought by F. W. Marsh to enjoin the auditor of state from issuing a certificate of indebtedness under the provisions of chapter 180 of the Laws of 1887. S. A Haseltine and Chancellor Livingston were made defendants with said auditor. The plaintiff alleges in his petition for injunction that in 1863, and for a long time prior thereto the plaintiff and Livingston were partners engaged in the livery business in Lawrence, Kansas, and that on the 21st day of August of said year their property, amounting to $ 3,680, was all destroyed by Quantrill's guerrilla band, and that afterward said account was audited for the firm, and again reaudited in 1875, and a certificate issued to Livingston for $ 1,840, in the name of Livingston. Afterward, and under the provisions of chapter 180 of the Laws of 1887, the state assumed the payment of these claims, or a certain proportionate part thereof, and directed the auditor to prepare a new schedule from the report of the commission that audited the claims in 1875, and to issue certificates of indebtedness for the amount of said claims to the original claimants, their heirs or legal representatives, and also to issue certificates of indebtedness when claims are allowed to a firm or partnership to the individual members of such partnership or firm, or to their heirs, in proportion to the interest each had in such firm or partnership. Plaintiff also alleges that the firm or partnership of Marsh & Livingston has been fully settled except the settlement of this claim, and that said Livingston is a nonresident of the state of Kansas, and is insolvent; also, that the auditor is about to issue a certificate of indebtedness for the whole amount of said claim, and deliver the same to Livingston. Plaintiff asks that the auditor be enjoined from issuing said certificate to said Livingston, and that he be required to issue a certificate to both Livingston and the plaintiff, each for one-half of the amount awarded by the report of the commission awarding to said Livingston $ 1,840, for and on behalf of the firm of Marsh & Livingston. Defendant McCarthy demurred to this petition upon the grounds, first, that the court had no jurisdiction of the subject of the action; second, a defect of parties pla...