Merrill v. The Board of County Commissioners of Ness County

• Decision Date: 01 February 1898
• Docket Number: 196
• Citation: 52 P. 109,7 Kan.App. 717
• Parties: N. C. MERRILL v. THE BOARD OF COUNTY COMMISSIONERS OF NESS COUNTY
• Court: Kansas Court of Appeals

52 P. 109

7 Kan.App. 717

N. C. MERRILL v. THE BOARD OF COUNTY COMMISSIONERS OF NESS COUNTY

No. 196

Court of Appeals of Kansas, Southern Department, Western Division

February 1, 1898

Opinion Filed February 10, 1898.

Error from Ness district court; J. E. ANDREWS, judge. Reversed.

THIS action was commenced by the defendant in error as plaintiff to recover the sum of $ 861.30 and an equal amount as a penalty under section 1658, General Statutes of 1889, it being alleged that the defendant, Merrill, had unlawfully received that sum from the treasury of Ness county. Merrill's claim upon which the payment had been made originated in connection with refunding the outstanding warrants of Ness county and the issuing of bonds to the amount of $ 30,000 in exchange therefor, he having acted as the agent of the commissioners and of the county in the transaction. The claim consisted of several items, one being for commission based upon the sale of the bonds. A warrant for $ 909.25 was issued to Merrill and was paid a year later it having been presented for payment by the Ness County Bank. On the trial the plaintiff withdrew its claim as to certain items, and the court instructed the jury to return a verdict for plaintiff for $ 750. Upon this verdict a judgment for $ 750, and for a like amount as a penalty, was rendered.

The answer contained several grounds of defense, one being the statute of limitations and another a plea of res adjudicata. The evidence in support of this latter ground consisted of the files of case No. 1105 of the district court of Ness county, in which the board of county commissioners was plaintiff and Merrill and the Ness County Bank were defendants. The cause of action in that case was the same as in this case. The defendants demurred to that petition upon these grounds: Failure to state a cause of action; misjoinder of parties defendant; misjoinder of causes of action, and defect of parties defendant. At the May, 1891, term this demurrer was sustained, the journal entry reciting:

"And now, to wit, on this day of May, 1891, comes the above-entitled action to be heard on demurrer filed herein upon the grounds: (1) That the petition does not state a cause of action; (2) that there is a misjoinder of parties defendant; (3) that there is a misjoinder of causes of action by the defendants (plaintiffs) herein. And the court, being duly advised in the premises by the argument of counsel thereon, doth find the grounds of said demurrer of said defendants to be true and doth sustain the same; and thereupon the plaintiff asks leave of court to file an amended petition herein.

"It is therefore ordered, considered and adjudged by the court that said demurrer be and the same is hereby sustained, and that plaintiff have sixty days in which to file an amended petition herein."

A journal entry of the September, 1891, term of court is as follows:

"Now on this 22nd day of September, 1891, being the day of the regular September, 1891, term of said court, comes said above-entitled action to be heard on motion of defendant, N C. Merrill, for judgment for costs. . . . And it appearing to the court that the plaintiff failed to file an amended petition in said action as to defendant, N. C. Merrill, under decree of court heretofore granted, and that his demurrer to the original petition has been sustained:

"It is therefore ordered, considered and adjudged that defendant, N. C. Merrill, have and recover of and from said plaintiff herein his separate costs herein, taxed at , and that said defendant go hence without day."

The plaintiff filed an amended petition, and a second amended petition against the Ness County Bank alone, the allegations of both of the latter being practically identical with those of the original petition. The bank filed its answer to the second amended petition, and on February 4, 1892, at the January term of court, a jury was impaneled to try the issues thus joined. After the introduction of evidence had commenced, the plaintiff, with leave of the court, dismissed the action without prejudice. This suit was begun on February 20, 1892.

Judgment reversed and case remanded.

Geo. S. Redd, for plaintiff in error.

Sam'l Jones, S. I. Hale, John Q. Vogles, for defendant in error.

OPINION

MILTON, J.:

I. The penalty portion of the judgment was erroneous. More than a year had elapsed after the payment of the warrant in question, and after demand for its repayment, prior to the commencement of this action. Recovery of the penalty was barred by subdivision 4 of section 18 of the civil code.

II. As to the plea of res adjudicata. It is settled law that where a demurrer to the merits of a petition is sustained and a judgment for costs is thereupon entered in favor of the party demurring, such judgment unless reversed, is as final and conclusive between the parties as if founded upon the verdict of a jury. It is not necessary to cite authorities in...