41 Kan. 20 | Kan. | 1889
Opinion by
This is an action of mandamus, brought in this court by Chancellor Livingston against T. McCarthy, as auditor of state of the state of Kansas, to compel him to issue to said Livingston a certificate of indebtedness, under the provisions of chapter 180 of the Laws of 1887. Plaintiff alleges that under the provisions of chapter 103 of the Laws of 1875, there was awarded to plaintiff, for loss sustained by the invasion and burning of Lawrence by guerrillas,
By the answer the allegations of the petition are admitted, and the only question is, has the auditor set up such an excuse as will prevent the peremptory writ from issuing against him ? By the answer the fact is shown that Marsh, the plaintiff in the injunction proceedings, is claiming some right in the certificate in question, adverse to the interest of the plaintiff in this action, and the answer of the defendant sufficiently notifies the plaintiff of what that interest may be. If Marsh is claiming some interest adverse to the plaintiff, before the peremptory writ of mandamus will issue as prayed for, Marsh ought to to be made a party to the action, and the controversy determined between them. McCarthy, the defendant herein, is but a nominal party to the proceeding, and ought not to be mulcted in costs in an action of this character, when there are parties interested who, if made parties to the action, will bear the burden of the defense. The peremptory writ of mandamus only issues where there is a clear legal right on the one hand, and a refusal to perform a lawful duty on the other. The auditor in his answer shows that he has been enjoined in a suit by Marsh from issuing and delivering the certificate to plaintiff, and we think this is a good defense, and until the parties in interest are brought before the court no peremptory writ will issue. (Cassatt v. Comm’rs of Barber Co., 39 Kas. 505.)
By the Court: It is so ordered.