McDonald's Adm'x v. Franklin County

• Decision Date: 22 March 1907
• Citation: 100 S.W. 861,125 Ky. 205
• Parties: MCDONALD'S ADM'X ET AL. v. FRANKLIN COUNTY.
• Court: Kentucky Court of Appeals

100 S.W. 861

125 Ky. 205

MCDONALD'S ADM'X ET AL. v. FRANKLIN COUNTY.

Court of Appeals of Kentucky.

March 22, 1907

Appeal from Circuit Court, Franklin County.

"To be officially reported."

Action by Franklin county against Pat McDonald's administratrix and others. From a judgment for plaintiff, defendants appeal. Affirmed.

M. J Holt and Guy H. Briggs, for appellants.

T. L Edelen, for appellee.

O'REAR C.J.

Franklin county had a bonded indebtedness of $62,000, which it desired to refund. The fiscal court of the county entered an order on its records directing the refunding of the debt, and appointing a committee composed of Magistrate Thompson County Attorney Polsgrove, and County Clerk Smith to advertise for bids for the funding bonds. The committee acted, and the bonds were sold to a Cincinnati firm of brokers. Pat McDonald, Sr., participated to some extent in the transaction. His representatives claim he acted as a financial agent for the county by its employment. The county claims he was acting for the brokers. After Mr McDonald's death, which occurred not a great while after the debt was refunded, his son presented a claim to some of the magistrates, if not to the fiscal court, for his services. There is no record of the fiscal court either that McDonald was employed in the matter at all, or that any claim for his services was presented to the court. A paper was drawn up and signed, which was taken as authority for the issuance of a warrant upon the county treasury for $450, in payment of the claim. This paper was not presented in or acted upon by the fiscal court in session. The paper is in the following words: "That the undersigned request and authorize N. B. Smith, C. F. C. C., to issue a Co. warrant payable to Pat McDonald, Jr., for $450.00 in full payment for Pat McDonald, Sr. (deceased), attorney to sell Co. bonds $65,000 in amount in the year payable out of the levy 1901. S. M. Tinsley, J. P. F. C. George B. Thompson, J. P. F. C. W. C. Guthrie, J. P. F. C. Joseph P. Pfeiffer, J. P.J. D. Moore. Franklin County, Monday, October 28th, 1901." This paper was presented to the county clerk, who entered it upon the records of the county court proceedings, and issued a warrant for $450 in favor of Pat McDonald, Jr. This warrant was paid by the sheriff out of the county levy funds, and was received by the representatives of Pat McDonald, Sr. County Attorney Polsgrove prosecuted an appeal to the circuit court from the order of the county court allowing the claim; but before the appeal was disposed of there had been a change of officials, and the fiscal court directed County Attorney Buford to bring an action against Pat McDonald, Sr.'s, representative to recover the $450. This suit was brought under that authority. The result was a judgment in favor of the county adjudging that it recover from the McDonalds the money paid out on the warrant. They prosecute this appeal from that judgment.

Their first contention is that the county could not prosecute both actions at the same time--the appeal referred to, and this suit at law for money had and received. In the view we have taken of the matter the appeal need not to be further considered, nor considered at all in this case; for we have reached the conclusion that the warrant was void, as was the order upon which it was issued. That being so, it was not necessary for the county to prosecute an...