8 Kan. App. 745 | Kan. Ct. App. | 1898
The opinion of the court was delivered by
This action was commenced in the district court of Gray county by the board of county commissioners of Finney county against the board of county commissioners of Gray county, on an alleged claim for the keeping of a prisoner committed to the jail of Finney county by a committing magistrate in Gray county, under paragraph 3549, General Statutes of 1889 (Gen. Stat. 1897, ch. 132, § 16). The allegation in the petition as to the presentation of the claim is as follows: “That said claim and amount is due and wholly unpaid ; that the same has been demanded
“ The defendant objected to the introduction of any evidence under the plaintiff’s bill,of particulars, on the ground that the said bill did not state facts sufficient to constitute a cause of action. ... It was not necessary that the bill of particulars should have stated that the several claims of the plaintiff had all been presented to the county board for allowance, and had been acted upon by them. Such a presentation of a claim constitutes no part of a plaintiff’s cause of action. It is merely a part of the mode of procedure to enforce the causes of action already existing. And if the plaintiff fails to resort to this mode of procedure, the failure is merely matter for defense — merely matter for plea in abatement, to be set up by the defendant itself.”
The next question presented is, Was Gray county, under the facts alleged, liable to Finney county? It appears that during a portion of the time the prisoner from Gray county was the sole occupant of the jail, and Gray county now refuses to pay the one dollar per day due the sheriff for attending the jail. The prisoner was lawfully committed to the jail of Finney county. Section 16, chapter 132, General Statutes of 1897 (Gen. Stat. 1889, ¶ 3549), provides:
“And the sheriff of such nearest county shall . . . receive and keep in custody in the jail of his county the prisoner ordered to be committed as aforesaid, at the expense of the county from which such person was sent.”
If the sheriff is entitled to the fee of one dollar per day for taking care of the jail, and this is incurred solely on account of the prisoner from the other county,
In this case the sheriff has assigned his credit to the ■county commissioners of Finney county. Without going into the question whether the county commissioners can, as a general rule, receive and take advantage of an assignment of an obligation, we can see no ■chance for abuse or speculation if the principle is not extended beyond the facts of this case. The case of Shawnee Co. v. Wabaunsee Co., 4 Kan. 314, is applicable in principle to the one at bar.
The judgment of the district court is reversed.