Stone v. Canfield

• Decision Date: 17 March 1900
• Citation: 55 S.W. 924
• Parties: STONE, Auditor, v. CANFIELD. [1]
• Court: Kentucky Court of Appeals

55 S.W. 924

STONE, Auditor, v. CANFIELD. ^[1]

Court of Appeals of Kentucky.

March 17, 1900

Appeal from circuit court, Franklin county.

"Not to be officially reported."

Action by C. I. Canfield against S. H. Stone, auditor of public accounts, for a mandamus. Judgment for plaintiff, and defendant appeals. Reversed.

W. S. Taylor and M. H. Thatcher, for appellant.

Wm. Cromwell, for appellee.

HAZELRIGG, J.

This was a petition for mandamus against the auditor, to compel him to pay the salary of the complainant, who, as he avers, had been wrongfully removed from the office of clerk of the Eddyville penitentiary, and in whose stead another clerk had been appointed. The proof on the hearing shows, as the court below held, that the attempted removal was a nullity. But on the principles announced in the case of Gorley v. City of Louisville (Ky.) 47 S.W. 263, decided since the case was heard, the appellee cannot maintain this action against the auditor for his salary until he shall have first sued the person appointed to the office in his stead, and have made good his right and title thereto. This record shows that such a suit is pending. Upon the issue of that suit will depend the appellee's right to his salary up to the time he was properly removed. This present action was prematurely brought, and its dismissal cannot affect the merits of the appellee's claim. Judgment reversed for proceedings consistent herewith.

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Notes:

^[1] Reported by Edward W. Hines, Esq., of the Frankfort bar, and formerly state reporter.

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