42 Kan. 264 | Kan. | 1889
The opinion of the court was delivered by
This is an application to this court for a writ of mandamus, commanding the board of county commissioners of Bourbon county to execute and deliver to Franklin C. Smith $125,000 in bonds of that county upon a subscription to the capital stock of the Fort Scott & Allen County Railroad Company, alleged to have been made on July 23, 1869. The alternative writ alleges, among other things, that on June 6, 1871, F. C. Smith & Co., composed of this plaintiff and one John Dunn, entered into a contract to grade a road-bed for said railroad company as provided in the resolution of the board of July 23, 1869; that under the contract Smith & Co. for their services were to receive $125,000 of the bonds of Bourbon county, and bonds of other counties and townships, for the grading and building of the road-bed,
“Whereas, the board having this day been waited on by parties representing the Fort Scott & Allen County Railroad Company with a request for action on the part of the board relative to the issuing of bonds voted by the people on the 24th of August, 1869, and it appearing to the board that considerable progress has been made in the work upon said railroad in this county, it is therefore ordered that the bonds aforesaid be prepared as soon as the same can be lithographed, and that they be laid in the ike-proof safe in the vault attached to the treasurer’s office, with the signature of the chairman affixed to the bonds and coupons, to await further action by the board.”
That as one of the inducements of Smith & Co. to enter into the contract, it was represented to them by the board of county commissioners and other residents of the county that the vote was all right, and that the bonds would be issued and delivered to the railroad company, so that they would receive pay for the work as soon as the work was completed in accordance with the resolution of July 23, 1869, a portion of the directors of the railroad company with which they made the conkact being the same directors selected by the county to represent it in the board of directors of the company; that upon the completion of the work by Smith & Co. the railroad company at a meeting of its directors, a part of whom were
“Now, to wit, on this 5th day of December, 1888, this cause came on for hearing upon the complainant’s bill as against the defendant, the Fort Scott, Humboldt & Western Railroad Company, the plaintiff appearing by H. E. Long, his counsel, and the defendant being in default for want of answer, demurrer, or other pleading. The court, being fully advised in the premises, finds that the equities of the cause are with the complainant as against said defendant. It is therefore ordered, adjudged and decreed that the right to have issue to said railroad company $125,000 of the county bonds of Bourbon county, Kansas, as set forth in the bill of complainant herein, be and the same is assigned to the complainant; and full power is hereby given to the complainant to bring an action in his name, or in the name of the said railroad company for his benefit, against the county of Bourbon, in the state of Kansas, and the board of county commissioners of said county of Bourbon, state of Kansas, to obtain the issue and delivery of the bonds described' in the bill of complainant, as prayed in said bill herein filed by the complainant. It is further ordered that the defendant,, the Fort Scott, Humboldt & Western Railroad Company, pay the costs of this proceeding, taxed at-dollars.”
This' action was commenced in this court on December 31, 1888. The board of county commissioners of Bourbon county has filed a motion to quash the writ, and of course this must be treated in the nature of a demurrer. In our view of the case we need refer only to one matter presented, and that is the statute of limitations. It appears from the allegations of the writ that the road-bed was completed prior to the 30th of June, 1872, and that the officers of the Fort Scott & Allen County Railroad Company made a demand for the bonds in dispute on the 30th of June, 1872. It is questionable whether Smith had any valid right whatever to sue for the bonds until December 5, 1888, when he obtained the transfer from the Fort Scott, Humboldt & Western Railroad Company of its right or claim thereto, because no privity existed between him and the county of Bourbon. It does not appear from
Counsel for Smith claims that under § 23 of the civil code his action is in time. That section reads:
“If any action be commenced within due time, and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if he die, and the cause of action survive, his representatives, may commence a new action within one year after the reversal or failure.”
Upon the allegations of the writ, Smith has lost his rights under the statute of limitations, and therefore the motion to quash must be sustained.