130 Ky. 247 | Ky. Ct. App. | 1908
Dismissing appeal.
L. D. Harney, suing for himself and other taxpayers of Fayette county, brought this suit against the Fayette fiscal court, the members of the court personally, and the jailer of Fayette 'county, stating in effect in his petition that he was a taxpayer and resident of the county, and that the fiscal court was paying out annually a large sum of money for fuel, light, water, and other attention to the offices in the courthouse, without authority of law. He prayed that the fiscal court be enjoined from appropriating any of the funds of the county for these purposes, and that the jailer be required by mandamus to take charge of the courthouse and perform the acts required of him by law. The defendants filed! an answer, in which they set out what they had done, pleading a special act of the General Assembly as their authority. The plaintiff filed a reply to the answer, the defendants demurred to the reply, the court sustained the demurrer, and, the plaintiff declining to plead further, the petition was dismissed, and Harney appealed to this court. After the record was filed in this court, J. T. Jones filed in this court his petition, in which he stated that since the appeal was granted Harney had become a citizen and resident of Lincoln county, Ky., that Jones was a resident and taxpayer of Fayette county, and that Harney had become a nonresident of Fayette county since the rendition of the judgment in the circuit court. Jones asked that he be made a party appellant, and that the appeal should stand for hearing as though prosecuted by Harney. This motion the court overruled. There
An action under the Code must be prosecuted by the real party in interest, and where one person sues as the representative of a class he must be a fair representative of the class. As Harney no longer lives in Fayette county, and is no longer a taxpayer there, he is in no sense a fair representative of the taxpayers of Fayette county, whom he proposed to represent. He was a taxpayer of the county and a fair representative of the class when he brought the action: but, his right to represent the class having-ceased pending the appeal, to allow him to prosecute the appeal would be to allow him to litigate a matter in which he has no interest. By section 757 of the Civil Code of Practice it is provided that, if it appear that the appellant’s right to prosecute it further has ceased, the appeal shall be dismissed. As Harney’s right to prosecute the appeal ceased upon his becoming a nonresident of Fayette county, the appeal, under this section, cannot be maintained.
We therefore conclude that the appeal must be dismissed, and it so so ordered.