Fiscal Court v. Strother

Court of Appeals of Kentucky

Fiscal Court v. Strother

251 S.W. 1003, 199 Ky. 824, 1923 Ky. LEXIS 932

CourtCourt of Appeals of Kentucky

DecidedJune 19, 1923

StatusPublished

Cited by8 cases

This text of 251 S.W. 1003 (Fiscal Court v. Strother) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fiscal Court v. Strother, 251 S.W. 1003, 199 Ky. 824, 1923 Ky. LEXIS 932 (Ky. Ct. App. 1923).

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Opinion

Opinion of tiie Court by

Judge Olay

Reversing.

On the application of J. W. Strother and others, citizens and taxpayers of 'Carter county, the circuit court of that county granted a mandamus directing the members of the fiscal court to advertise for bids and to elect a county treasurer in the manner provided by section 929, Kentucky Statutes. The defendants appeal.

Section 28, Civil Code, is as follows:

. “The court may determine any controversy between parties before it, if it can do so without prejudice to others ,• if it cannot do so, it must require such other persons to be made parties, or must dismiss the action without prejudice.”

In construing this section it has been held that, although a failure to object for defect of parties is a waiver so far as the defendants are concerned, yet, where the cause is such that the court cannot render a decision between the parties without injuriously affecting the rights of others who are not before the court, it ought not to proceed until such other persons are made parties to the action. Johnson v. Chandler, 15 B. Mon. 584.

[826]*826It appears from the amended petition that the fiscal court had theretofore elected a county treasurer, who had executed bond and was performing the duties of the office, but that his election was not in conformity with the statute. In deciding the case below, the court necessarily held the present incumbent’s election invalid, and the practical effect of the judgment was to remove him from office. It will not do to say that it was not necessary to make him a party because his election was void, for even if void, he had the right to be before the court when that question and other questions affecting his substantial rights were decided. We therefore conclude that the court should not have proceeded to judgment until the present incumbent was made a party to the action. For the same reason we refrain from deciding at this time whether appellees may maintain the action, or mandamus is an appropriate remedy, or any other question now presented.

Judgment reversed and cause remanded for proceedings consistent with this opinion.

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Opinion of tiie Court by

Judge Olay

Reversing.

On the application of J. W. Strother and others, citizens and taxpayers of 'Carter county, the circuit court of that county granted a mandamus directing the members of the fiscal court to advertise for bids and to elect a county treasurer in the manner provided by section 929, Kentucky Statutes. The defendants appeal.

Section 28, Civil Code, is as follows:

. “The court may determine any controversy between parties before it, if it can do so without prejudice to others ,• if it cannot do so, it must require such other persons to be made parties, or must dismiss the action without prejudice.”

In construing this section it has been held that, although a failure to object for defect of parties is a waiver so far as the defendants are concerned, yet, where the cause is such that the court cannot render a decision between the parties without injuriously affecting the rights of others who are not before the court, it ought not to proceed until such other persons are made parties to the action. Johnson v. Chandler, 15 B. Mon. 584.

[826]*826It appears from the amended petition that the fiscal court had theretofore elected a county treasurer, who had executed bond and was performing the duties of the office, but that his election was not in conformity with the statute. In deciding the case below, the court necessarily held the present incumbent’s election invalid, and the practical effect of the judgment was to remove him from office. It will not do to say that it was not necessary to make him a party because his election was void, for even if void, he had the right to be before the court when that question and other questions affecting his substantial rights were decided. We therefore conclude that the court should not have proceeded to judgment until the present incumbent was made a party to the action. For the same reason we refrain from deciding at this time whether appellees may maintain the action, or mandamus is an appropriate remedy, or any other question now presented.

Judgment reversed and cause remanded for proceedings consistent with this opinion.

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251 S.W. 1003, 199 Ky. 824, 1923 Ky. LEXIS 932, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fiscal-court-v-strother-kyctapp-1923.

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