2. STIPULATIONS 14(10)-QUALIFICATIONS [ on the said October 7, 1916, and no more. (4) OF WOMAN VOTER-ABILITY TO WRITE. That Mary B. Allen could read and write on In suit contesting election of a trustee in a said October 7, 1916." subdistrict of an educational district, where it was stipulated that a woman voter could write her name, the effect was the same as if it had been stipulated that she could write her name and nothing more. 3. ELECTIONS 73 SCHOOLS AND SCHOOL DISTRICTS-RESIDENCE OF VOTER. Where the father of a voter in a subdistrict of an educational division, with whom the voter lived, moved to another district, but the voter remained in the district by moving to another person's residence and continuing to live there, claiming it as his home, the mere fact that he was seen going to and from his father's new home, and had his washing done there, did not show he resided with his father out of the district. Appeal from Circuit Court, Clay County. Suit by Joe L. Allen against Wiley Murrel. From judgment for plaintiff, defendant appeals. Affirmed. A. T. W. Manning, D. Y. Lyttle, and Manning & Lyttle, all of Manchester, for appellant. Webb, House & Webb, of Manchester, for appellee. CLAY, C. At the election held on October 7, 1916, Wiley Murrel and Joe L. Allen were rival candidates for the office of trustee in subdistrict 12, educational division No. 3, of Clay county. According to returns made by the officers of the election, Murrel received 34 votes and Allen 32 votes, and Murrel was awarded a certificate of election. Thereupon Allen brought this suit, contesting the election on the ground that certain voters for Murrel had no right to vote. Murrel filed an and counterclaim, denying the allegations of the petition and challenging the votes of six persons who voted for Allen. On final hearing the court held that Allen received 29 legal votes, while Murrel received 28 legal votes, and entered judgment declaring Allen elected. Murrel appeals. We have written that one is able to write who, by the use of alphabetical signs, can express in a fairly legible way words in common use and of average difficulty, though each word may not be accurately spelled. Justice v. Meade, 162 Ky. 421, 172 S. W. 678. We may also add that the ability to write, as contemplated by the statute, carries with it the power to record or express ideas or thoughts. Hence the statute is not satisfied by the mere ability to write one's name, or one's name and post office address and nothing more. W. H. Helton v. Harrison Burdette, 180 Ky. 492, 203 S. W. 189. Viewing the stipulation in the light of this rule, it is clear that neither Catherine Allen nor Nancy Allen was able to write. It is equally clear that Mary Allen could write, because the stipulation that she could do so was without qualification. But it is argued that the vote of Mary Gilbert should not have been rejected because the stipulation showed that she "could write her name," and appellee did not sustain the burden of showing that she could write nothing more. We are of the opinion, however, that this position is not tenable. To avoid the necessity of taking further proof, the facts were stipulated. The manifest purpose of the stipulation was to disclose the voters' educational qualifications by showing exactly what they could do in. the way of reading and writing. therefore it was stipulated that Mary Gilbert could write her name, the necessary inference is that that was the limit of her ability in that respect, and the effect is the same as if it had been stipulated that "she could write her name and nothing more." therefore conclude that the vote of Mary. Gilbert, which was cast for appellee, was properly rejected. When We About [3] It remains to consider whether the vote of Steve Allen was properly counted for appellee. If improperly counted, the election resulted in a tie. It appears that Steve Allen had lived with his father in the subdistrict in question for several years. the 1st of March, 1916, his father moved to another district. Thereupon Steve went to live with Gilbert Baker, whose residence was in the subdistrict in question, and claimed his home at Gilbert Baker's until the day after the following November election, when he went to live with Able Bishop. At the November election he voted in precinct 13, which includes the subdistrict in question. According to the evidence for appellant, Steve Allen was seen going and returning from his father's home after his father mov [1, 2] The propriety of the judgment depends on the correctness of the court's decision that Catherine Allen, Mary Gilbert, and Nancy B. Allen, who voted for Murrel, were not entitled to vote, and that Steve Allen, who voted for Joe L. Allen, was entitled to vote. The right of suffrage in school elections has been conferred on all women who possess the legal qualifications of male voters and who are also able to read and write. Chapter 47, Acts 1912, p. 193. During the progress of the action, the parties signed and filed the following stipulation of facts: "In order to save time and expense in the further preparation of this cause for trial in taking rebuttal evidence for the plaintiff, it is stipulated and agreed by and between the plaintiff. Joe L. Allen, and his counsel of record and Wiley Murrel and his counsel of record as follows: (1) That on the 7th day of October, 1916, Cath-ed from the district, and had his washing erine Allen could read print, and could write her done at his father's home. name. (2) That on the 7th day of October, 1916, doubted that Allen had the right, when his Mary Gilbert could read print and could write (3) That Nancy B. Allen could read father moved, to remain in the district and and could write her name and post office address select another home there. This he did by moving to Baker's residence and continuing to live there and claiming it as his home. Under these circumstances, the mere fact that he was seen going to and from his father's new home, and had his washing done there, is not sufficient to show that he resided with his father. We therefore conclude that Allen's vote was properly counted for appellee. It results that the judgment was proper. Judgment affirmed. (180 Ky. 567) CAIN, County Treasurer, v. BURROUGHS (Court of Appeals of Kentucky. May 14, 1918.) 1. COUNTIES 113(1) - POWERS OF FISCAL COURT PURCHASE OF ADDING MACHINE. Ky. St. § 1840, as to powers of fiscal court, authorizes the fiscal court of a county to purchase an adding machine; it being necessary to the conduct of its business. 2. MANDAMUS 109-COMPELLING PAYMENT OF WARRANT. Mandamus is the proper remedy to compel payment of the amount of a lawful warrant by a county treasurer; for he is purely a ministerial officer; his duties being defined, in large measure, by Ky. St. § 931. 3. MANDAMUS 71-MINISTERIAL DUTY. Mandamus may be used and is the appropriate remedy to compel a recalcitrant officer to perform a merely ministerial duty which the law requires at his hands. 4. COUNTIES 168(1)-WARRANTS-PAYMENT -ORDER OF FISCAL COURT. An order of the fiscal court appropriating in advance the money necessary to make a purchase and authorizing such purchase, does not give the seller of the article a right to payment of the warrant issued on such order, unless it is shown that the purchase was actually made. Appeal from Circuit Court, Lawrence County. Mandamus by the Burroughs Adding Machine Company against W. T. Cain, Treasurer of Lawrence County. From judgment awarding mandamus, defendant appeals. Reversed and remanded, with direction. C. F. See, Jr., of Ft. Gay, W. Va., for appellant. R. A. McDowell, of Louisville, and S. S. Willis, of Ashland, for appellee. the machine to the fiscal court or clerk of the county court, or its acceptance by the fiscal court or clerk, or that the fiscal court or clerk has it in possession or control. The order of the fiscal court, whereby it is claimed $225 was allowed appellee for the adding machine, which was filed with the petition, is in words as follows: "Lawrence Fiscal Court, Regular Term,_7th day of April, 1915. It is ordered that the Burroughs Adding Machine Company be, and they are hereby allowed the sum of $225 for one adding machine, payable out of the common fund for the year 1915, and that the county judge, J. B. Clayton, be authorized to make such purchase at the above price." The warrant alleged to have been issued to appellee under the above order is in words and figures as follows: "$225.00. Lawrence Fiscal Court, April Term, 1915. It is ordered, that Burroughs Adding Machine Company be allowed the sum of two hundred and twenty-five dollars and cents ($225.00), for Burroughs Adding Machine No. 262792 payable by the county treasurer out of the common fund for the year 1915. "Attest: M. A. Hay, Clerk L. F. C., Deputy Clerk. "Not over two hundred forty ($240)." There appears on this warrant the following indorsement signed by J. P. Gartin, appellant's predecessor as treasurer of Lawrence county: 66 9 "This claim bears interest at the rate of 6 per cent. from this date, 4/7/1915. “J. P. Gartin, Treasurer Lawrence County." In the second paragraph of the answer it was alleged, in substance, that appellee never sold, or offered to sell, to J. B. Clayton, county judge of Lawrence county, the adding machine in question, and that the order was wrongfully made, or caused to be made, by appellee's agent without the knowledge or assent of the fiscal court; that the adding machine, though in the courthouse at the time of the institution of the action, was subject to removal by appellee, and had never been in the possession or control of the fiscal court. Appellee filed a general demurrer to the answer, which the circuit court sustained, and, as appellant refused to plead further, judgment was entered, awarding appellee the mandamus direct; appellant, as treasurer of the county, to pay it the amount of the warrant with interest, as claimed by the latter. From that judgment appellant has entered in this court his motion for an appeal. SETTLE, C. J. In this action instituted in the Lawrence circuit court the appellee, Burroughs Adding Machine Company, sought a writ of mandamus to compel the appellant, W. T. Cain, treasurer of Lawrence county, to pay it a county warrant of $225, claimed to have been issued to it by virtue of an or[1] The first question presented for decider of allowance made by the Lawrence fiscal sion by the appeal is whether the fiscal court court for a Burroughs adding machine, No. had authority to purchase for its use or 262792, alleged to have been sold by it to the that of the county clerk an adding machine. fiscal court and delivered to the county court We think this question must be given an clerk. The appellant treasurer resisted the affirmative answer. It is true the fiscal court right of appellee to the payment of the war- is a court of limited jurisdiction, and thererant by answer denying the purchase by the fore without power to appropriate county fiscal court or county judge of the adding ma- funds except as authorized by law. Jefferson chine, or the authority of either to make County v. Young, 120 Ky. 456, 86 S. W. 985, such purchase, also denying the delivery of 27 Ky. Law Rep. 849; Hollis et al. v. Weis For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes senger, County Judge, 142 Ky. 129, 134 S. W. 176. It is likewise true that state and county governments never become debtors by implication; in order to show that the state or county is responsible to a claim for demand the claimant must show a legal obligation on the part of the state or county to pay it. Allin v. Mercer County, 174 Ky. 566, 192 S. W. 638. We think the authority to purchase an adding machine like that here in controversy is conferred upon the fiscal court by Kentucky Statutes, § 1840. In Simons v. Gregory, etc., 120 Ky. 123, 85 S. W. 751, 27 Ky. Law Rep. 509, we held that the fiscal court of Jefferson county was authorized to make an appropriation to provide an elevator for the courthouse, as elevators were in common use in Louisville for access to the several stories of a building like that of the Jefferson county courthouse and were necessary for that purpose. In Hollis v. Weissenger, supra, it was held that electric fans could be purchased by the fiscal court for the use of the county clerk's office, because such fans are in common use and recognized as a necessity in such public buildings, and in the clerk's office in question are indispensably so because of the unsanitary conditions obtaining therein. It is further true that adding machines are not expressly mentioned in Kentucky Statutes, 1840; but neither are elevators, electric fans, and other things indispensably necessary to the proper conduct of the business of the court, such as typewriters, pens, pencils, ink, paper, and books, authority to purchase which by the fiscal courts has been doubted. The adding machine not only facilitates the work required of county officers such as clerks of the courts, sheriff, etc., but its accuracy is such as to prevent errors in the computation of figures. Indeed, it may well be said that an adding machine has become a practical necessity in the proper conduct of the business of a court controlling the fiscal affairs of a county. [2, 3] If appellee actually sold the fiscal court of Lawrence county the adding machine in question, mandamus to compel the payment by the county treasurer of the amount contained in the warrant was the remedy Creary, Governor, v. Speer, 156 Ky. 153, 162 S. W. 99; Jarvis v. Stanley, 176 Ky. 630, 197 S. W. 183. [4] Notwithstanding the conclusions far expressed, we are constrained to hold that the ruling of the circuit court in sustaining appellee's demurrer to appellant's answer was error. The order of the fiscal court relied on as authorizing the issuance to appellee of the warrant appellant refused, as treasurer, to pay, does, it is true, appropriate $225, which it declares is to be paid appellee for an adding machine; but it further shows that the machine had not then been purchased, for it authorizes the county judge "to make such purchase at the above price." In other words, the order merely appropriated in advance the amount necessary to purchase the machine, but wholly fails to show its purchase. Indeed, it as clearly shows that the purchase was thereafter to be made, as that the appropriation for that purpose was made. It does not appear from the language of this order, or from that of a subsequent order, that the county judge in fact purchased of appellee the machine for which the appropriation of $225 was made. It is alleged in the petition that such purchase was made, but this allegation is expressly denied by the appellant's answer, as are the further allegations of the petition that there was a delivery to the fiscal court or county clerk of the machine. The admission of the answer that the adding machine was at the time of the institution of the appellee's action in the Lawrence county courthouse subject to appellee's order or right to remove it, in view of the denials of the answer referred to, was not an admission that the machine had been purchased by the county judge as authorized by the fiscal court's order of allowance, or that the machine had been used by the fiscal court or county clerk. It is also to be remarked that the answer alleges, in substance, that the issuance and delivery to appellee of the warrant upon the treasurer for the price ed, as was the act of the former treasurer, appellant's predecessor in office, in indors of the machine was wrongful or unauthoriz ing upon the warrant the statement that it was to bear interest from the date in such indorsement indicated. In brief, the issues of fact made, as stated, by the denials and averments of the answer threw upon the appellee the burden of showing by the introduction of evidence the sale and delivery to the fiscal court of the adding machine in question; therefore, instead of being sustained, the demurrer to the answer should have been overruled. to which appellee was entitled to resort. A county treasurer is purely a ministerial officer; his duties being in large measure defined by Kentucky Statutes, § 931. He is the custodian of the funds belonging to the county, and must pay them out under the orders of the fiscal court. Mandamus may be used, and is the appropriate remedy to compel a recalcitrant officer to perform a merely ministerial duty which the law requires at his hands. 11 Cyc. 1144: Harrison v. Logan County, 129 For the reasons indicated, the appeal prayKy. 48, 110 S. W. 377; Houston v. Boltz, 169 ed is granted; judgment reversed, and the Ky. 640, 185 S. W. 76; Marshall v. Herndon, cause remanded, with direction to the lower 161 Ky. 232, 170 S. W. 623; Traynor v. Beck- court to overrule the demurrer to the answer, ham, Governor, 116 Ky. 13, 74 S. W. 1105, and permit the parties to proceed to trial (180 Ky. 589) materials that were likewise used in the CHICAGO BONDING & SURETY CO. v. P. construction of the sanitarium. P. JOHNSON & SON. OPENING PLEADINGS. In a suit for materials furnished by plaintiff under a building contract and for a lien, where the surety, after the time for pleading, was allowed to interpose a demurrer, it was error, upon overruling such demurrer, to confirm the commissioner's report immediately and to deny the surety the right to file an answer, since, where the court has reopened the pleadings, it is not proper for it to exclude, upon the ground of former delay, subsequent pleadings that may be necessary under the Code. Under Civ. Code Prac. § 133, providing that upon a demurrer being overruled the party demurring may plead, a surety's answer, in a suit against his principal for materials furnished under a construction contract controverting the correctness of plaintiff's claim and affirmatively alleging that the amount was smaller than such claim, stated a defense, requiring the answer to be admitted upon reopening of the pleadings. On April 18, 1916, P. P. Johnson & Son filed this action in the Henderson circuit court against the district board, the Chicago Bonding & Surety Company, the Ernest Ringo Construction Company, and other creditors of that company, asking that the creditors be adjudged liens on the sanitarium property, and that it be sold to satisfy the indebtedness; but, if a lien could not be had against the sanitarium property, the plaintiff prayed that it be given a lien on whatever sum might be due the contractor from the district board. They also asked judgment against the surety company to the extent of any balance that might be due after applying the balance due from the district board to the payment of debts. Some of the defendants were nonresidents, against whom warning orders were taken. At the May term, 1916, at which the case Stood for trial as to certain of the defendants, the district board filed its answer, admitting it had in its hands a balance of $4,300, due the contractor, which it subsequently paid to the commissioner. The surety company was promptly summoned, and its answer was due on the third day of the May, 1916, term of the court; but none was then filed. On May 16, 1916, on motion of plaintiffs, the case was referred to the master commis Appeal from Circuit Court, Henderson sioner, with instructions to take proof and County. Action by P. P. Johnson & Son against the Chicago Bonding & Surety Company, the district board of Tubercular Sanitarium Trustees for Henderson County, and others, to recover a balance under a building contract and to have a lien declared therefor. From a judgment entered on a commissioner's report, adjudging a lien and awarding recovery over against the surety company, it appeals. Reversed and remanded. Henson & Taylor, of Henderson, for appelJohn C. Worsham and A. Leo King, lant. both of Henderson, Ernest Ringo, of Portland, Or., and Marvine D. Eblen and F. J. Pentecost, both of Henderson, for appellee. report on claims as soon as possible. He filed his report on June 3, 1916, which was ordered to be laid over until the second day of the September term, for exceptions. The report showed claims aggregating $6,122.08, and $4,300 in the commissioner's hands for distribution. On September 13, 1916, seven days after the time for filing exceptions to the master's report on claims had expired, the surety company was permitted to file a demurrer to the petition over the plaintiff's objection. But, no exceptions having been filed to the commissioner's report on claims, the plaintiffs, on September 20, 1916, moved the court to confirm the report. The surety company objected to this motion, and it was continued. MILLER, J. On October 11, 1915, the dis- The surety company then tendered and offertrict board of Tubercular Sanitarium Trus-ed to file exceptions to the commissioner's tees for Henderson County made a contract report, to which the plaintiffs objected; and with the Ernest Ringo Construction Company for the construction of a tubercular sanitarium for $9,100, and to secure the performance of the contract the construction company executed a bond to the district board with the appellant, the Chicago Bonding & Surety Company, as surety thereon. that motion was also continued. The surety company, without waiving its demurrer, then tendered and offered to file its answer to the petition, to which the plaintiffs objected; and this motion was likewise continued. On the following day, September 21, 1916, the court overruled the demurrer of the surety company, overruled the motion to file exceptions to the commissioner's report, and sustained the plaintiff's motion to confirm the report. Between October 11, 1915, and April 18, 1916, the appellees, P. P. Johnson & Son, furnished the contractor with materials used in the erection of the sanitarium of the agreed value of $3,018.76; and other deal- On October 6, 1916, the commissioner filed ers furnished the construction company with a supplemental statement, showing a pro rata For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes distribution of 68.85 per cent. to the several creditors, which was confirmed on the 10th of that month, with instructions to the commissioner to distribute the funds in his hands accordingly. The judgment gave the district board a recovery over against the surety company for the several amounts adjudged to be lien claims against the sanitarium property for the use and benefit of the several lienholders, and that any creditor might have an execution issued in favor of the district board against the surety company for the amount of his claim and the costs of this action for his use and benefit. The surety company appeals, insisting that the circuit court erred: (1) In overruling its demurrer to the petition; (2) in overruling its motion to file exceptions to the commissioner's report on claims; and (3) in rejecting its answer and amended answer. The circuit court filed a written opinion, in which it rested its action upon two grounds: (1) That neither the demurrer, the exceptions, nor the answer had been presented in time; that all parties had been given from June 3 until the second day of the September term to file exceptions, but that appellant had failed within that time to do any thing, and that no exceptions were tendered until September 20, 1916, when the case was under discussion upon the motion to confirm the commissioner's report; and (2) that neither the exceptions nor the answers presented a defense. So the only question before the court is this: Did the circuit court, under the circumstances, abuse its discretion in refusing to file appellant's exceptions and answers? [1] It is conceded that the answer was not tendered within the time prescribed by section 367a of the Civil Code of Practice, and that the exceptions were not tendered within the time fixed by the order. The statute, however, is very liberal in its terms, and expressly vests in the trial court a broad discretion in determining whether pleadings should be permitted to be filed out of time. Weldon v. Finley, 104 S. W. 101, 31 Ky. Law Rep. 1051. Furthermore, it provides that the excuse for the failure to file the pleading within the time prescribed by the statute must be shown by affidavit; otherwise the litigant has not presented sufficient ground to excite the attention of the court. Again, in permitting a party to file a pleading out of time, it is entirely proper for the court to place upon the delinquent party such terms as will not delay the trial of the case beyond a period that is required for a speedy preparation upon the part of the delinquent, and to require him to pay the costs incident to the filing of his belated pleading, which may be ordered to be controverted of record, if the court should deem it proper and just to all parties concerned. [2] But, where the court has reopened the pleadings it is not proper for it to exclude upon the ground of former delay subsequent pleadings that may be necessary under the Code. In the case at bar the court permitted appellant to file its demurrer to the petition on Septmber 13, 1916, a week before the plaintiff moved the court to confirm the commissioner's report. That motion, and the appellant's motions to file the exceptions and the answer then tendered, were made on September 20, 1916, with the demurrer undisposed of. On the succeeding day, September 21, the appellant's demurrer to the petition was overruled, and its motion theretofore made to file exceptions to the report and to file its answer were likewise overruled, and the report was immediately confirmed. [3] Section 133 of the Civil Code of Practice provides that, upon a demurrer being overruled, the party demurring may plead. appellant's answer to be filed, provided it set The court should therefore have admitted the appellant's answer to be filed, provided it set it did not set forth a defense, and accordingly excluded it. In this ruling, however, we think the circuit court was clearly in error, since the answer, in addition to several defenses raising purely legal questions which are not now decided, expressly controverted the correctnes of the claim of the plaintiff for $3,082.16, and affirmatively alleged that said claim did not exceed $2,802.28. In this respect, at least, the answer certainly stated a defense, and should have been filed. The other features of the answer as amended are not now passed upon, since the issues may be changed by subsequent pleadings. forth a defense. The circuit court held that Section 2472 of the Kentucky Statutes requires the commissioner to fix a time and place at which he will hear proof touching claims against the property, and at such hearing any person whose interest may be affected by the suit may contest any claim presented. The commissioner failed, however, to follow the statute in this respect, and the appellant was thereby deprived of his right to contest the plaintiff's claim before the commissioner. But, as the answer presented the same questions that the exceptions raised, we have confined the consideration of the appeal to the case presented by the answer. Judgment reversed, and action remanded for further proceedings consistent with this opinion. An action to enforce a lien for royalties upon minerals after separation is transitory, but if the vendor conveys title, retaining a puraction to enforce the lien by sale of the minerals chase-money lien, payable before severance, an while a part of the land is local to the county where the land lies, under Civ. Code Prac. § 62, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |