Warford v. Temple

• Decision Date: 28 April 1903
• Citation: 73 S.W. 1023
• Parties: WARFORD et al. v. TEMPLE.
• Court: Kentucky Court of Appeals

73 S.W. 1023

WARFORD et al. v. TEMPLE.

Court of Appeals of Kentucky.

April 28, 1903

Appeal from Circuit Court, McCracken County.

"Not to be officially reported."

Action by Adam Temple against T. W. Warford and another. Judgment for plaintiff, and defendants appeal. Reversed.

Oliver & Oliver, for appellants.

Moss &amp Moss, for appellee.

BURNAM C.J.

The appellee, Adam Temple, sought in this action to make the appellants, T. W. Warford and L. F. Green, personally responsible for the debts evidenced by the following obligations:

"February 26, 1896. Twelve months after date, we, or either of us trustees of district No. 6, white, of McCracken county, Kentucky, promise to pay to the order of Adam Temple the sum of $110.00 without interest until after maturity, it being money borrowed of said Temple to build schoolhouse in said district No. 6. T. W. Warford, L. F. Green, Trustees."

"February 21, 1896. Twenty-four months after date, we, or either of us, the trustees of white school district number 6, McCracken county, Kentucky, promise to pay to the order of Adam Temple the sum of $120.00 for value received without interest until after maturity, it being money this day borrowed of said Temple to build schoolhouse in said district number 6. T. W. Warford, L. F. Green, Trustees."

He alleges in his petition that appellants were the trustees of common school district No. 6, and that it had been legally determined that a schoolhouse should be erected and furnished; that there was not enough money under the control of the defendants as trustees for this purpose, and that they borrowed and used the money for which the notes were executed for the purpose of erecting and furnishing a schoolhouse; that it was their duty as trustees to levy and have collected a tax sufficient to have paid or discharged these notes, but that they had failed and refused to do so--and charges that, in consequence of such dereliction on their part, they were personally bound to him for the money so borrowed, and asked a personal judgment therefor, and for all proper relief.

The defendants filed a general demurrer to plaintiff's petition, which was not acted upon, but it was adjudged that plaintiff's petition be taken for confessed; and personal judgments were rendered against each of the defendants on both of the obligations at the May term, 1901, of the McCracken circuit court. At the following September term of the court, the defendants moved the court to set aside the judgment on the ground that it was prematurely entered, under section 517 of the Civil Code of Practice. And at the same time they tendered and offered to file their answer, in which they allege, in substance, that they were the trustees of common school district No. 6, that the county superintendent had notified them that the schoolhouse had been condemned and that the furniture therein was insufficient; that there were no funds in their hands available for erecting a new schoolhouse or making necessary repairs, and that the money for which the notes sued on were executed was borrowed for the use and benefit of the district, pursuant to the authority conferred upon them by section 4440 of the Statutes; that, with full knowledge of the facts, plaintiff loaned to them the money as school trustees, and not in their individual capacity; that in the year 1896 they levied a capitation tax on each white male citizen in the district over 21 years of age of $1, and an ad valorem tax of 25 cents on each $100 worth of property for four years, and that, as long as they were trustees of the district, the tax so levied was collected and applied to the erection and equipping of the schoolhouse for the district; that their terms as trustees expired in the year 1897, and they were not trustees for the years 1898, 1899, or 1900, but that at the date on which their...