1 Kan. App. 219 | Kan. Ct. App. | 1895
The opinion of the court was delivered by
This action was brought under §39, chapter 25, General Statutes of 1889, against R. W. M. Roe, to recover back alleged unauthorized fees and money received by Mm while acting as one of the members of the board of county commissioners of Elk county. On the 29th day of March, 1889, the county attorney, on behalf of the board of county commissioners, filed in the office of the clerk of the district court of said county a petition against the said R. W. M. Roe, as principal, and N.
(1) That the defendant, Roe, was the duly-elected and qualified county commissioner within and for Elk county, Kansas, for the full term of three years, commencing on the second Monday in January, 1887, and that said Roe acted as such county commissioner continuously from the commencement of said term until the 3d day of December, 1888; that before entering upon his duties as such county commissioner the defendant, Roe, executed a bond to the state of Kansas as such county commissioner, as provided by law, with said defendants, N. Monna and J. B. Dobyns, as sureties, which bond was duly approved and filed in the office of the register of deeds of said county of Elk, a copy of which bond is attached to said petition, marked‘ ‘ Exhibit A,” and made a part of the amended petition to the first cause of action therein; and alleges that one H. B. Marshall, of said county, was the duly-elected and qualified commissioner for said county for the full.term of three years, ending on the second Monday in January, 1888, and that said Marshall acted as such commissioner during said entire term ; and one W. M. Crooks was the duly-elected and qualified county commissioner for said county for the full term of three years, ending on the second Monday in January, 1889, and that he acted as such during said entire term; that said defendant Roe was also duly-elected and qualified county commissioner for said county for the term of three years, ending on the second Monday in January, 1887, and that he acted as such during said entire term; that in the years of 1886 and 1887 said Roe, Marshall and Crooks, while acting in
This is the entire allegation contained in the first cause of action. There are eight separate causes'of action stated in the petition of the plaintiff. The seven succeeding causes of action merely refer to the general allegation in the first cause of action without setting out particularly any several causes of action, and refer to exhibits “A,” “B,” “C,” and “D,” thereto attached, as a part of each of the several causes of action as they are set forth, and allege the receiving of different sums of money at the different times, up to and including the 14th day of July, 1887. To this amended petition the defendant interposed two several motions, the first motion being to strike out certain portions of the plaintiff’s amended petition, which motion was overruled by the court and exceptions taken by the defendant. This motion should have been sustained, as these allegations were unnecessary, redundant and irrelevant, and tended only to the prejudice of the defendant on the trial of said cause. The code of civil procedure requires the plaintiff in his petition to set out the facts constituting his cause of action in ordinary and concise language, and if redundant or irrelevant matter be inserted in any pleading it may be stricken out on motion of the party prejudiced thereby. The next motion was to require the plaintiff to make its petition more definite and certain in the following particulars ; (and each count of the defendant’s amended petition separately), (1) By setting out and stating wherein the several amounts described in each cause of action were not legal claims against said county of Elk, and wherein and in what respect said claims were and are unlawful and in violation of law, and for what services said claims were
The motion of the defendants to require plaintiff to make its petition more definite and certain in certain particulars, and to make each count of the amended petition more definite and certain, should have been sustained. The petition does not show in what respect the claims that are alleged to have been unlawfully allowed by the commissioners and paid out of the county fund were illegal, nor for what services the claims were presented. The petition should contain a statement of facts in plain and concise language without repetition, showing on what account the claims alleged to have been unlawfully paid were allowed— whether for services as a member of the board of county commissioners, or whether they were claims for other and different services outside of those pertaining strictly to his fees as a member of the board of county commissioners. The petition is also defective in not stating wherein the defendant, Roe, did not honestly and faithfully discharge and perform the duties of his office as county commissioner. The averment in the petition is simply a conclusion without a statement of any facts in relation to 'the manner in which the defendant, Roe, did perform his duties as a commissioner of Elk county, nor does the petition anywhere show wherein the defendant had no lawful right to receive the money that was allowed him by the commissioners and paid out of the county funds of Elk county. The allegations in the petition that action could not be commenced against the defendant on the several causes of action as set up in its amended petition states no fact why suit could not be commenced against the defendant while the other two members of the board of commissioners remained in
After the court had overruled the motion of the defendants to require the plaintiff to make its petition more definite and certain, the defendants filed a demurrer to the amended petition of the plaintiff setting forth two causes of demurrer thereto : (1)" That the several causes of action of plaintiff’s petition are improperly joined; (2) that the plaintiff’s petition and each cause of action attempted to be set out in plaintiff’s petition separately for that plaintiff’s amended petition does not state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendants. The demurrer of the defendants was sustained as to N. Monna and J. B. Dobyns, andtoverruled as to R. W. M. Roe, and judgment was rendered by the court sustaining the demurrer of N. Monna and J. B. Dobyns against the plaintiff for their costs, and the defendant, Roe, excepted to the judgment of the court in overruling the demurrer as to himself, and the case comes to this court on the petition in error of Roe alone.
Plaintiff’s action is based on §39 of chapter 25, General Statutes of 1889, to recover back unauthorized fees and money received by Roe while acting, as one of the members of the board of county commissioners. Under this section all fees, costs'or other allowances of any fees obtained from or allowed against any county, when the same are not authorized by law and not refunded on demand, may be recovered back in a civil action in the name of a proper
“Within one year : An action for libel, slander, assault, battery, malicious prosecution, or false imprisonment ; an action upon a statute for penalty or forfeiture, except where the statute imposing it prescribes a different limitation.”
The petition in the case shows that this action is prosecuted for the recovery of a penalty prescribed by statute, and also shows that the action was not commenced within one year from the time the money is alleged to have been received by Roe. The action is barred by the statute of limitations. It was attempted in the amended petition to show such state of facts as suspended the statute of limitations by stating that the action could not be commenced within one year after the receipt of the several sums of money mentioned in the amended petition by reason of the commissioners’ refusal to allow the same to be prosecuted on behalf of the board of county commissioners, but it is nowhere alleged that the board of county commissioners interfered to prevent the bringing of suits for the- recovery of the money with the legal penalty. It is alleged that the county attorney
Upon examination of the record, it is shown that the summons was quashed on motion because it was improvidently issued, the plaintiff not having given bond for costs, and not because of the interference of the commissioners. The claim is rested on the simple fact that Roe was a county commissioner, and the sums unlawfully appropriated by the commissioners could not be collected or received from said commissioners while they, or any two of them, remained in office, nor could an action be prosecuted therefor. This claim cannot be sustained. These facts are not such an exception as would prevent the running of the statute of limitations. It is made the duty of the county attorneys to appear in the several courts of their respective counties and prosecute and defend, on behalf of the people, all suits, applications, or motions, civil or criminal, arising under the laws of this state in which the state or county is a party or interested. They have the full legal right to use the name of the state or board of county commissioners in the prosecution of any case in which the state or county
There are other reasons -why the demurrer should have been sustained. The amended petition does not state facts sufficiently well pleaded to constitute a cause of action against the defendant, Poe. It does not appear from the amended petition that the claims