199 Ky. 139 | Ky. Ct. App. | 1923
Opinion op the Court by
— Reversing the judgment in the first ease in the caption and affirming the judgment in the second one.
Appellant, Miller Brothers Company, a corporation, as plaintiff below filed the first case in the caption against the Elkhorn City graded' school district and its trustees seeking the recovery of a judgment against the district on a promissory note alleged to have been executed by it for $3,346.43!, and for the further sum of $623.25 for material furnished the district at its special instance and request, as alleged in the petitiou, and to enforce a-lien on bonds of the district aggregating $4,500.00 which it is averred were pledged • to plaintiff as collateral security for the debts sued on. At the appearance term of the court neither the district nor any of its trustees made defense and an order was entered taking the allegations of the petition as confessed. Shortly thereafter and at the same term of court appellants in the first case, G-. W. Mullins, et al., tendered and filed their intervening petition in which they alleged that they were citizens and taxpayers within the alleged school district and that defendants were and had been assuming to act as a duly constituted graded school district and in that assumed capacity had contracted the debts sued for when in truth and in fact the district had not been legally organized and, in substance, pleaded that the recovery of a judgment against the alleged district would cast a cloud upon the property within its bounds subject to taxation for its payment, and the petitioners representing themselves and all other taxpayers of the district sought to prevent such recovery. Plaintiff, Miller Brothers Company, demurred to the intervening petition, which the court sustained and dismissed it. The peti
The judgment in the first ease was rendered on March 31, 1921. Between that date and May 25, 1921, which was the first succeeding term after the rendering of the judgment, the master commissioner endeavored to carry out the order directing him to sell the collateral security and he reported that he received no bids for any of the bonds when offered by him at the directed sale. On the same day plaintiff, Miller Brothers Company, filed its amended petition in which it alleged the recovery of the judgment in its favor against the district and the futile effort on the part of the commissioner to sell the collateral security, and further alleged that it sold the property and material to the individual trustees of the district “for said Elkhorn City graded school at their special instance and request, and that they received all of the goods, wares and merchandise for which the note sued on herein for $3,346.43 was executed, and also the account for $623.25,” and that the property sold was delivered by it and received by the trustees in Elkhorn City, and that the trustees as individuals sold and’ delivered all of it to other persons and appropriated the proceeds to their individual use, and prayed for a judgment against each of them individually for the aggregate amount of the debts. On the next day the order filing that amendment and the judgment rendered thereon was set aside at the instance of the trustees and on the 12th day of September, being the next term of court, the objection of the trustees to its being filed was overruled and it was filed. The defendants therein then entered motion to strike it from the files upon certain grounds, among which was that it departed from the original petition. That motion was sustained and it was stricken from the record with leave on the part of plaintiff to amend and which it declined to do, followed by a judgment reciting “said amended petition is dismissed, to all of which plaintiff objects and excepts and prays an appeal to the Court of Appeals, which is granted.” The second appeal calls in question the propriety of that judgment. The two appeals have been consolidated in this court and they will be heard together and disposed of in one opinion.
That being true, the next question is did the- intervening petition allege facts sufficient to show the invalidity of the organization of the graded school district. It alleged and filed certified supporting exhibits showing that the petition for the organization of the graded school district, as required by section 4464 of the- statutes to be filed as a prerequisite to its formation, was filed before the county judge of Pike county on December 22, 1919, and on that same day an order was entered describing the district and directing that an election be held therein for the purpose of voting the requisite tax and an election of trustees on February 14, 1920, on which latter date the election was held, after due advertisement, and the proposition to organize the district and to vote the tax carried by the requisite majority of the votes cast and at the same time trustees for the district were elected. The section of the statute referred to directs that the order describing the district and calling the elec
The practice with reference to the entry of nime pro kmc orders is that they may not be made from mere memory of the presiding judge of the court or based upon parol testimony only. There must be some entry, memorandum or other fact appearing in the record or among the papers of the case showing that the order or judgment was actually made or rendered hut by some oversight of the clerk or other person it was not duly and properly entered or recorded. In that case it is competent within certain limitations to correct the oversight by a nunc pro tunc order, but without the appearance of some such evidenciary fact a nunc pro tunc order can not be sustained, since there is no valid ground upon which to base it. Rawls v. Sharp, 140 Ky. 744; Kendrick v. Williams, 157 Ky. 767; Boyd County v. Ross, 95 Ky. 167; Monarch v. Brey, 21 Ky. L. R. 279; Collier v. Commonwealth, 110 Ky. 516, and a number of other cases found therein and in Caldwell’s Kentucky Judicial Dictionary, vol. II, pages 2356-9, inclusive. No evidence
In regard to the second appeal, but little need be said. The relief sought by the amended petition of Miller Brothers Company was not only a radical departure from the relief sought in its original petition and for that reason should have been rejected, but it was offered after the entire relief sought by the petition was obtained. Whether the trustees under the facts therein alleged would be personally liable to plaintiff in an independent action is a question not presented and which we do not determine; but, that the court properly ruled in dismissing the amended petition, or striking it, we entertain no doubt.
Wherefore the judgment in the first appeal is reversed with directions to set it aside and to overrule the demurrer to the intervening petition of appellants in that case, and the judgment in the second appeal is affirmed.