Ward v. Adams

102 S.W.2d 1026, 267 Ky. 553, 1937 Ky. LEXIS 357

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: March 5, 1937
• Status: Published

Opinion

Opinion op the Court by

Judge Stites

Dismissing appeal.

Appellant brought this suit on behalf of himself and all other taxpayers of Johnson county to recover the sum of $341.81 for the benefit of the county, which, it is alleged, was wrongfully paid to the appellee by order of the Johnson county fiscal court as a commission for collecting taxes improperly levied. Ward v. Adams, 258 Ky. 721, 81 S. W. (2d) 574. The petition failed to allege that any demand had been made on the proper public officials to bring the suit or that any circumstances existed showing that such a demand would be futile. Following a long line of decisions, the circuit, court sustained a special demurrer to the petition on the ground that appellant was without authority or capacity to sue. Pike County v. Young, 266 Ky. 588, 99 S. W. (2d) 749; Wagner v. Wallingford, 257 Ky. 477, 78 S. W. (2d) 326; Taylor v. Todd, 241 Ky. 605, 44 S. W. (2d) 606; Schoening v. Paducah Water Co., 230 Ky. 453, 19 S. W. (2d) 1073; McKechnie v. Canada, 198 Ky. 807, 250 S. W. 111; Williams v. Stallard, 185 Ky. 10, 213 S. W. 197; Mills v. Lantrip, 170 Ky. 81, 185 S. W. 514.

Although the amount involved is less 'than $500 an appeal was granted by the circuit court, and this is the appeal sought here to be prosecuted. No motion for an appeal has been made pursuant to section 950-1 et seq. of the Kentucky Statutes, 1936 Edition. We are therefore without jurisdiction to consider the question. Gilmore & Helm v. Brown, 215 Ky. 100, 284 S. W. 1017; Miller’s Appellate Practice, secs. 14, 15, 16, and 17.

Appeal dismissed.