Opinion or the court delivered bv
JUDGE NUNN
Aeeirming.
Ben Spaulding was-the county attorney of Marion county from January, 1898, to the sixth day of January, 1902, on. which date appellee. C. S. Hill, succeeded him in said *3office. During the term of appellant’s office the grand jury of Marion county returned 14 indictments against the Louisville & Nashville Railroad Company, and two of said indictments were tried before a jury; the verdict being a fine of $300 in one case, and $350 in the other. The railroad’s counsel, desiring to appeal from the judgment to test the liability of said railroad, made a private agreement with ■the Commonwealth’s attorney, W. H. Sweeney, that the remaining indictments be filed away, and, in the event the judgment in the two cases mentioned were affirmed on appeal, then, in such event, the railroad company would -consent to a fine of $400 in each of three of the other cases'; the other nine to be dismissed: Some time in the latter part of the year 1901 the judgments in the two cases were affirmed. The Gommonwealth’s attorney had the 12 cases ■reinstated on the docket, and at the January term, 1902, and after the appellee, Hill, had been inducted into office, a judgment of $400 in each of the three cases was rendered against the railroad company, and the nine remaining cases’ were dismissed. The issue between these parties is as to who is entitled to the 25 per cent, allowed to the county attorney, of said last three judgments; each of them claiming that they were present and assisting in the obtention of the judgments. The appellant filed his petition, claiming the $300, and asked the court to enjoin the Auditor of the State from paying, and the appellee, Hill, from receiving, the sum. The lower court refused to grant the injunction, and dismissed appellant’s petition, and the appellant is here on appeal.
Appellant claims that he aided and assisted in getting up the evidence upon which the grand jury returned the indictments; that he was present and consented to the agreement between the Commonwealth’s attorney and the rail*4road’s attorney, and that, by reason of the private agreement between the Commonwealth’s attorney and the railroad’s attorney, the liability of the railroad was fixed upon a contingency dependent upon the result of the appeal from the two first judgments; and that the judgments wer© affirmed during his term of office, which, he claims, fixed the liability of the railroad to pay the $1,200 (which by the agreement it had promised to pay), although the judgments were not rendered thereon during his term of office.
Section 133-of tbe Kentucky Statutes provides: “In all prosecutions in the circuit court when the county attorney is present and assists in the prosecution, he shall receive from the State Treasurer 25 per cent, of all judgments rendered in favor of the Commonwealth,” etc. It is plain that it was contemplated by the statutes that the county attorney that was present and assisting in the prosecution at the time of the rendition of the judgment was entitled to the per cent, allowed by the statute. To construe the statute otherwise would bring about endless confusion and litigation, and every outgoing county attorney would claim and demand a part of the 25 per cent, on each judgment on prosecutions originating during his term of office, to the extent of his labor and service rendered therein. The agreed ment made by the Commonwealth’s attorney and the attorney for the railroad was not binding upon either, and certainly was not binding upon the court. The court or either of the parties could have ignored it, and it did not fix the liability of the railroad company in the event the appeals were affirmed. It could have pleaded “Not guilty,” and have had a trial by the court or jury, in each or all of the twelve indictments. And the Commonwealth’s attorney could have forced the railroad to have tried all the eases, and it was *5within the discretion of the court to render the judgments in accordance with said agreement, as it did, or refuse.
Perceiving no error, the judgment of the lower court is affirmed.