Turner v. Hagins

• Decision Date: 20 June 1933
• Citation: 61 S.W.2d 899,250 Ky. 17
• Parties: TURNER, County Judge, et al. v. HAGINS.
• Court: Kentucky Court of Appeals

61 S.W.2d 899

250 Ky. 17

TURNER, County Judge, et al. v. HAGINS.

Court of Appeals of Kentucky

June 20, 1933

Appeal from Circuit Court, Breathitt County.

Mandamus proceeding by J. Wise Hagins against William Turner, County Judge, and others. From an adverse judgment, defendants appeal.

Motion for appeal sustained, appeal granted, and judgment reversed.

Kash C Williams and A. M. Russell, both of Jackson, for appellants.

E. C Hyden, of Jackson, for appellee.

RICHARDSON Justice.

The sole question presented for determination in this case is the right of a holder of a warrant issued by the fiscal court of a county of this commonwealth to demand and collect of the county, 6 per cent. interest from its date until paid without presenting it for payment to the county treasurer not more than thirty days after the date of the allowance of the claim by the court as required by section 1840a, Ky. St. The Legislature by an act of March 1926, c. 171, p. 783, § 22, attempted to repeal section 1840a, but the repealing act was held unconstitutional as a whole. Felts, County Attorney v. Linton, 217 Ky. 305, 289 S.W. 312. Since the institution of this action and the rendition of the judgment herein, the Legislature at its 1932 Session (chapter 24, p. 127, § 25) repealed section 1840a, Ky. St., with the proviso that the repealing act should not become effective until January 1, 1933. Such repealing act in no way affected the prior judgment.

On the 10th day of August, 1926, J. Wise Hagins, in an action pending in the Breathitt circuit court, recovered a judgment against Breathitt county for the sum of $973.76 with interest thereon from date until paid. On the 13th day of April, 1928, he caused the fiscal court of Breathitt county to issue, and it issued to him, a warrant, on its face, for the sum of $973.76. It was directed to the treasurer of the county for payment out of the funds of the county. No copy of the warrant appears in the record, but in the consideration of the case we shall treat it as complying with the statutes authorizing and controlling the issuance of warrants by the fiscal court on claims presented to it. This action was filed setting forth these facts and alleging that the warrant had been presented to the treasurer of the county and payment demanded thereon, but refused. The petition charges that it was presented to the treasurer of Breathitt county, "at divers times" and payment demanded, but that its payment was continuously refused; that taxes had been levied and collected every year since its issuance, and the funds paid to the treasurer of the county, but the warrant had not been paid out of funds collected for any year. A mandamus was sought to compel the fiscal court to pay the original judgment in satisfaction of which the warrant was issued, including interest and costs of the action.

Hagins argues that the warrant in this case is distinguished from the ordinary warrant issued by the fiscal court, directed to the treasurer of the county and payable out of the county's funds, in that a judgment had been rendered against the county, and that the judgment did not merge; that the right to enforce the judgment continued, notwithstanding the issuance and his acceptance of the warrant. We cannot concur in this view. When the county warrant was issued by the fiscal court and accepted by Hagins in satisfaction of the judgment, it was clearly the intention of Hagins and the fiscal court that his right or remedy to enforce the judgment should...