31 S.W.2d 897 | Ky. Ct. App. | 1930
Affirming.
Some time before January 6, 1928, the fiscal court of Fleming county formally authorized and directed E.V. Hall, treasurer, to make claim upon certain former officers of the county for reimbursement of sums appearing from the report of accountants to have been wrongfully withheld and misappropriated by them. He was further authorized through special counsel employed by the county to institute suit against those officers who did not pay the claims asserted against them. Under that authority suit was instituted against the appellee A.P. Plummer, former county clerk, and the surety on his bond. It was charged that during the four years, 1922 to 1925, inclusive, he had received stated sums annually for office stationery and supplies, but had not used them for that purpose; and also that he had retained certain fees to which he was not legally entitled. The aggregate sued for was $3,476.30. Several steps were taken in the suit from time to time, including the filing and overruling of a demurrer to the petition as amended.
With the case in this status, on January 8, 1930, the fiscal court entered an order reciting that it appeared "after a thorough investigation that said suits were unwarranted when brought and are constantly increasing costs and attorney's fees and should in justice to the taxpayers be dismissed." The treasurer and the county attorney were ordered and directed to dismiss the suit at the ensuing term of the circuit court. Thereafter the county attorney filed a written motion to dismiss it, to which objection was made by counsel for plaintiffs, who had been employed by the fiscal court because of the refusal of the county attorney to bring the action.
Before that motion was acted upon, through one of the attorneys who had filed the suit originally, the appellants J.H. Sousley and others asked permission to file their intervening petition to be made parties to the suit and for authority to prosecute it to a conclusion for themselves and other taxpayers. It was charged that any separate action by them for the recovery of the sums involved would be barred by limitation, and, unless they should be permitted to intervene in the suit and prosecute it, there would be great loss to the county and its taxpayers. The court declined to permit the intervention, and then dismissed the petition filed for and by the *508 county. The correctness of his action is the question before us.
This court has a number of times approved the policy of taxpayers prosecuting suits for the recovery of money due a county or municipality charged to have been illegally withheld or collected when those having that official responsibility have declined to do so. Shipp v. Rodes,
In Shipp v. Rodes,
We have been cited by counsel to Bernheim v. Wallace,
Rejection of a pleading not sufficient in substance or form where there is an objection is equivalent to sustaining a demurrer to it. Hofgesang v. Silver,
The ruling of the trial court, under the circumstances, seems to have been proper, and the judgment is therefore affirmed.