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

We have written that one is able to write her name, the effect was the same as if it had who, by the use of alphabetical signs, can been stipulated that she could write her name express in a fairly legible way words in comand nothing more.

mon use and of average difficulty, though 3. ELECTIONS Om73 – SCHOOLS AND SCHOOL each word may not be accurately spelled. DISTRICTS-RESIDENCE OF VOTER.

Where the father of a voter in a subdistrict Justice v. Meade, 162 Ky. 421, 172 S. W. 678. of an educational division, with whom the vot-We may also add that the ability to write, as er lived, moved to another district, but the contemplated by the statute, carries with it voter remained in the district by moving to another person's residence and continuing to live

power to record or express ideas or there, claiming it as his home, the mere fact thoughts. . Hence the statute is not satisfied that he was seen going

to and from his father's by the mere ability to write one's name, or new home, and had his washing done there, did one's name and post office address and nothnot show he resided with his father out of the district.

ing more. W. H. Helton v. Harrison Bur

dette, 180 Ky. 492, 203 S. W. 189. Viewing Appeal from Circuit Court, Clay County. the stipulation in the light of this rule, it is

Suit by Joe L. Allen against Wiley Murrel. clear that neither Catherine Allen nor NanFrom judgment for plaintiff, defendant ap- cy Allen was able to write. It is equally peals. Affirmed.

clear that Mary Allen could write, because A. T. W. Manning, D. Y. Lyttle, and Man- the stipulation that she could do so was withning & Lyttle, all of Manchester, for appel- out qualification. But it is argued that the lant. Webb, House & Webb, of Manchester, vote of Mary Gilbert should not have been for appellee.

rejected because the stipulation showed that

she "could write her name," and appellee did CLAY, C. At the election held on October not sustain the burden of showing that she 7, 1916, Wiley Murrel and Joe L. Allen were could write nothing more. We are of the rival candidates for the office of trustee in opinion, however, that this position is not subdistrict 12, educational division No. 3, of tenable. To avoid the necessity of taking Clay county. According to returns made by further proof, the facts were stipulated. The the officers of the election, Murrel received 34 manifest purpose of the stipulation was to votes and Allen 32 votes, and Murrel was disclose the voters' educational qualifications awarded a certificate of election. Thereupon by showing exactly what they could do in. Allen brought this suit, contesting the elec- the way of reading and writing. When tion on the ground that certain voters for therefore it was stipulated that Mary Gilbert Murrel had no right to vote. Murrel filed an could write her name, the necessary inferanswer and counterclaim, denying the alle-ence is that that was the limit of her ability gations of the petition and challenging the in that respect, and the effect is the same votes of six persons who voted for Allen. as if it had been stipulated that "she could On final hearing the court held that Allen write her name and nothing more. We received 29 legal votes, while Murrel received therefore conclude that the vote of Mary. Gil28 legal votes, and entered judgment declar- bert, which was cast for appellee, was proping Allen elected. Murrel appeals.

erly rejected. [1, 2] The propriety of the judgment de

[3] It remains to consider whether the vote pends on the correctness of the court's de- of Steve Allen was properly counted for apcision that Catherine Allen, Mary Gilbert, pellee. If improperly counted, the election and Nancy B. Allen, who voted for Murrel, resulted in a tie. It appears that Steve Alwere not entitled to vote, and that Stevé len had lived with his father in the subdisAllen, who voted for Joe L. Allen, was enti-trict in question for several years. About tled to vote. The right of suffrage in school the 1st of March, 1916, his father moved to elections has been conferred on all women another district. Thereupon Steve went to who possess the legal qualifications of male live with Gilbert Baker, whose residence was voters and who are also able to read and in the subdistrict in question, and claimed write. Chapter 47, Acts 1912, p. 193. During his home at Gilbert Baker's until the day the progress of the action, the parties signed after the following November election, when and filed the following stipulation of facts: he went to live with Able Bishop. At the

“In order to save time and expense in the fur- November election he voted in precinct 13, ther nreparation of this cause for trial in taking which includes the subdistrict in question. rebuttal evidence for the plaintiff, it is stipulat- According to the evidence for appellant, ed and agreed by and between the plaintiff, Joe Steve Allen was seen going and returning L. Allen, and his counsel of record and Wiley from his father's home after his father movMurrel and his counsel of record as follows: (1) That on the 7th day of October, 1916, Cathed from the district, and had his washing erine Allen could read print, and could write her done at his father's home. It cannot be 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 her name. (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 the machine to the fiscal court or clerk of the to live there and claiming it as his home. county court, or its acceptance by the fiscal Under these circumstances, the mere fact court or clerk, or that the fiscal court or that he was seen going to and from his fa- clerk has it in possession or control. The ther's new home, and had his washing done order of the fiscal court, whereby it is claimthere, is not sufficient to show that he re- ed $225 was allowed appellee for the adding sided with his father. We therefore con- machine, which was filed with the petition, clude that Allen's vote was properly counted is in words as follows: for appellee. It results that the judgment "Lawrence Fiscal Court, Regular Term, 7th was proper.

day of April, 1915. It is ordered that the BurJudgment affirmed.

roughs Adding Machine Company be, and they are hereby allowed the sum of $225 for one add

ing machine, payable out of the common fund (180 Ky. 567)

for the year 1915, and that the county judge, J.

B. Clayton, be authorized to make such purCAIN, County Treasurer, v. BURROUGHS chase at the above price.” ADDING MACH. CO.

The warrant alleged to have been issued to (Court of Appeals of Kentucky. May 14, 1918.) appellee under the above order is in words 1. COUNTIES 113(1) POWERS OF FISCAL and figures as follows: COURT - PURCHASE OF ADDING MACHINE.

"$225.00. Lawrence Fiscal Court, April Ky. St. § 1840, as to powers of fiscal court, Term, 1915. It is ordered, that Burroughs Addauthorizes the fiscal court of a county to pur-ing Machine Company be allowed the sum of chase an adding machine; it being necessary to two hundred and twenty-five dollars and the conduct of its business.

cents ($225.00), for Burroughs Adding Machine 2. MANDAMUS m109--COMPELLING PAYMENT No. 262792 payable by the county treasurer out OF WARRANT.

of the common fund for the year 1915. Mandamus is the proper remedy to compel "Attest: M. A. Hay, Clerk L. F. C., payment of the amount of a lawful warrant by

Deputy Clerk. a county treasurer; for he is purely a minis- "Not over two hundred forty ($240)." terial officer; his duties being defined, in large measure, by Ky. St. $ 931,

There appears on this warrant the follow3. ·MANDAMUS On 71-MINISTERIAL DUTY. ing indorsement signed by J. P. Gartin, ap

Mandamus may be used and is the appropri- pellant's predecessor as treasurer of Lawate remedy to compel a recalcitrant officer to rence county: perform a merely ministerial duty which the law requires at his hands.

“This claim bears interest at the rate of 6 4. COUNTIES 168(1)—WARRANTS-PAYMENT per cent. from this date, 4/7/1915. -ORDER OF FISCAL COURT.

"J. P. Gartin, Treasurer Lawrence County." An order of the fiscal court appropriating

In the second paragraph of the answer it in advance the money necessary to make a pur: was alleged, in substance, that appellee nevchase and authorizing such purchase, does not give the seller of the article a right to payment er sold, or offered to sell, to J. B. Clayton, of the warrant issued on such order, unless it is county judge of Lawrence county, the adding shown that the purchase was actually made.

machine in question, and that the order was Appeal from Circuit Court, Lawrence wrongfully made, or caused to be made, by County.

appellee's agent without the knowledge or Mandamus by the Burroughs Adding Ma- assent of the fiscal court; that the adding chine Company against W. T. Cain, Treasurer machine, though in the courthouse at the of Lawrence County. From judgment award-time of the institution of the action, was ing mandamus, defendant appeals. Reversed subject to removal by appellee, and had never and remanded, with direction.

been in the possession or control of the fiscal

court. O. F. See, Jr., of Ft. Gay, W. Va., for appellant. R. A. McDowell, of Louisville, and

Appellee filed a general demurrer to the S. S. Willis, of Ashland, for appellee.

answer, which the circuit court sustained,

and, as appellant refused to plead further, SETTLE, C. J. In this action instituted in judgment was entered, awarding appellee the the Lawrence circuit court the appellee, Bur- mandamus direct; appellant, as treasurer of roughs Adding Machine Company, sought a | the county, to pay it the amount of the warwrit of mandamus to compel the appellant, rant with interest, as claimed by the latter. W. T. Cain, treasurer of Lawrence county, From that judgment appellant has entered to pay it a county warrant of $225, claimed in this court his motion for an appeal. 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

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senger, County Judge, 142 Ky. 129, 134 S. W. Creary, Governor, v. Speer, 156 Ky. 153, 176. It is likewise true that state and county | 162 S. W. 99; Jarvis v. Stanley, 176 Ky. 630, governments never become debtors by impli- 197 S. W. 183. cation; in order to show that the state or [4] Notwithstanding the conclusions SO county is responsible to a claim for demand far expressed, we are constrained to hold the claimant must show a legal obligation on that the ruling of the circuit court in susthe part of the state or county to pay it. Allin taining appellee's demurrer to appellant's v. Mercer County, 174 Ky. 566, 192 S. W. 638. answer was error. The order of the fiscal We think the authority to purchase an adding court relied on as authorizing the issuance machine like that here in controversy is con- to appellee of the warrant appellant refused, ferred upon the fiscal court by Kentucky as treasurer, to pay, does, it is true, approStatutes, & 1840. In Simons v. Gregory, etc., priate $225, which it declares is to be paid 120 Ky. 123, 85 S. W. 751, 27 Ky. Law. Rep. appellee for an adding machine; but it fur509, we held that the fiscal court of Jefferson ther shows that the machine had not then county was authorized to make an appropria- been purchased, for it authorizes the county tion to provide an elevator for the court judge "to make such purchase at the above house, as elevators were in common use in price.” In other words, the order merely Louisville for access to the several stories of appropriated in advance the amount necesa building like that of the Jefferson county sary to purchase the machine, but wholly courthouse and were necessary for that pur- fails to show its purchase. Indeed, it as pose. In Hollis v. Weissenger, supra, it was clearly shows that the purchase was thereheld that electric fans could be purchased by after to be made, as that the appropriation the fiscal court for the use of the county for that purpose was made. It does not clerk's office, because such fans are in com- appear from the language of this order, or mon use and recognized as a necessity in such from that of a subsequent order, that the public buildings, and in the clerk's office in county judge in fact purchased of appellee question are indispensably so because of the the machine for which the appropriation of unsanitary conditions obtaining therein. It is $225 was made. It is alleged in the petition further true that adding machines are not ex- that such purchase was made, but this allegapressly mentioned in Kentucky Statutes, tion is expressly denied by the appellant's § 1840; but neither are elevators, electric answer, as are the further allegations of the fans, and other things indispensably neces- petition that there was a delivery to the fiscal sary to the proper conduct of the business court or county clerk of the machine. of the court, such as typewriters, pens, pen- The admission of the answer that the addcils, ink, paper, and books, authority to pur ing machine was at the time of the institution chase which by the fiscal courts has been of the appellee's action in the Lawrence doubted. The adding machine not only facili-county courthouse subject to appellee's ortates the work required of county officers der or right to remove it, in view of the such as clerks of the courts, sheriff, etc., but denials of the answer referred to, was not its accuracy is such as to prevent errors in an admission that the machine had been the computation of figures. Indeed, it may purchased by the county judge as authorized well be said that an adding machine has be- by the fiscal court's order of allowance, or come a practical necessity in the proper con- that the machine had been used by the fiscal duct of the business of a court controlling court or county clerk. It is also to be re

marked that the answer alleges, in substance, the fiscal affairs of a county.

[2, 3] If appellee actually sold the fiscal that the issuance and delivery to appellee of court of Lawrence county the adding machine the warrant upon the treasurer for the price

of the machine was wrongful or unauthorizment by the county treasurer of the amount ed, as was the act of the former treasurer, contained in the warrant was the remedy ing upon the warrant the statement that it

appellant's predecessor in office, in indorsto which appellee was entitled to resort. A county treasurer is purely a ministerial offi- was to bear interest from the date in such

indorsement indicated. In brief, the issues cer; his duties being in large measure defin- of fact made, as stated, by the denials and ed by Kentucky Statutes, $ 931. He is the cus-averments of the answer threw upon the todian of the funds belonging to the county, appellee the burden of showing by the introand must pay them out under the orders of duction of evidence the sale and delivery the fiscal court. Mandamus may be used, and to the fiscal court of the adding machine in is the appropriate remedy to compel a recalci- question; therefore, instead of being sustaintrant officer to perform a merely ministerial ed, the demurrer to the answer should have duty which the law requires at his hands.been overruled. 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.

On April 18, 1916, P. P. Johnson & Son filed (Court of Appeals of Kentucky. May 17, 1918.) this action in the Henderson circuit court 1. PLEADING Cm333-TIME OF FILING-TERMS against the district board, the Chicago Bond

–AND Costs.

ing & Surety Company, the Ernest Ringo ConUnder Civ. Code Prac. $ 367a, vesting in the struction Company, and other creditors of trial court discretion in determining whether that company, asking that the creditors be pleadings should be permitted to be filed out of adjudged liens on the sanitarium property, time, the court may place upon the delinquent party such terms as will not delay the trial, and and that it be sold to satisfy the indebtedmay require him to pay costs incident to the ness; but, if a lien could not be had against filing of his belated pleading.

the sanitarium property, the plaintiff prayed 2. PLEADING C222-TIME OF FILING-RE- that it be given a lien on whatever sum might OPENING PLEADINGS.

In a suit for materials furnished by plain- be due the contractor from the district board. tiff under a building contract and for a lien, They also asked judgment against the surety where the surety, after the time for pleading, company to the extent of any balance that was allowed to interpose a demurrer, it was er- might be due after applying the balance due ror, upon overruling such demurrer, to confirm from the district board to the payment of the commissioner's report immediately and to from the district board to the payment of deny the surety the right to file an answer, debts. since, where the court has reopened the plead- Some of the defendants were nonresidents, ings, it is not proper for it to exclude, upon the against whom warning orders were taken. ground of former delay, subsequent pleadings at the May term, 1916, at which the case that may be necessary under the Code.

At 3. PLEADING 222 - ANSWER - REOPENING stood for trial as to certain of the defendants, PLEADINGS.

the district board filed its answer, admitting Under Civ. Code Prac. $ 133, providing that it had in its hands a balance of $4,300, due upon a demurrer being overruled the party, de- the contractor, which it subsequently paid to murring may plead, a surety's answer, in a suit against his principal for materials fur- the commissioner. The surety company was nished under a construction contract controvert- promptly summoned, and its answer was due ing the correctness of plaintiff's claim and affirm-l on the third day of the May, 1916, term of the atively alleging that the amount was smaller than such claim, stated a defense, requiring the court; but none was then filed. answer to be admitted upon reopening of the On May 16, 1916, on motion of plaintiffs, pleadings.

the case was referred to the master commisAppeal from Circuit Court, Henderson sioner, with instructions to take proof and County.

report on claims as soon as possible. He filed Action by P. P. Johnson & Son against the his report on June 3, 1916, which was ordered Chicago Bonding & Surety Company, the dis- to be laid over until the second day of the trict board of Tubercular Sanitarium Trus- September term, for exceptions. The report tees for Henderson County, and others, to re- showed claims aggregating $6,122.08, and $4,cover a balance under a building contract 300 in the commissioner's hands for distribuand to have a lien declared therefor. From a tion. judgment entered on a commissioner's report, On September 13, 1916, seven days after adjudging a lien and awarding recovery over the time for filing exceptions to the master's against the surety company, it appeals. Re- report on claims had expired, the surety comversed and remanded.

pany was permitted to file a demurrer to the Henson & Taylor, of Henderson, for appel- petition over the plaintiff's objection. lant. John C. Worsham and A. Leo King,

But, no exceptions having been filed to the both of Henderson, Ernest Ringo, of Port” commissioner's report on claims, the plainland, Or., and Marvine D. Eblen and F. J. tiffs, on September 20, 1916, moved the court Pentecost, both of Henderson, for appellee. 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 that motion was also continued. The surety for the construction of a tubercular sanitaris company, without waiving its demurrer, then um for $9,100, and to secure the performance tendered and offered to file its answer to the of the contract the construction company ex- petition, to which the plaintiffs objected; ecuted a bond to the district board with the and this motion was likewise continued. On appellant, the Chicago Bonding & Surety the following day, September 21, 1916, the Company, as surety, thereon.

court overruled the demurrer of the surety Between October 11, 1915, and April 18, company, overruled the motion to file excep1916, the appellees, P. P. Johnson & Son, 'tions to the commissioner's report, and susfurnished the contractor with materials used tained the plaintiff's motion to confirm the in the erection of the sanitarium of the report. 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

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distribution of 68.85 per cent. to the several pleadings it is not proper for it to exclude creditors, which was confirmed on the 10th of upon the ground of former delay subsequent that month, with instructions to the com- pleadings that may be necessary under the missioner to distribute the funds in his hands, Code. In the case at bar the court permitted accordingly. The judgment gave the district appellant to file its demurrer to the petiboard a recovery over against the surety tion on Septmber 13, 1916, a week before the company for the several amounts adjudged plaintiff moved the court to confirm the comto be lien claims against the sanitarium prop- missioner's report. That motion, and the aperty for the use and benefit of the several pellant's motions to file the exceptions and lienholders, and that any creditor might the answer then tendered, were made on have an execution issued in favor of the dis- September 20, 1916, with the demurrer undistrict board against the surety company for posed of. On the succeeding day, September the amount of his claim and the costs of this 21, the appellant's demurrer to the petition action for his use and benefit.

was overruled, and its motion theretofore The surety company appeals, insisting that made to file exceptions to the report and to the circuit court erred: (1) In overruling its file its answer were likewise overruled, and demurrer to the petition; (2) in overruling the report was immediately confirmed.

[3] Section 133 of the Civil Code of Pracits motion to file exceptions to the commissioner's report on claims; and (3) in rejecting tice provides that, upon a demurrer being its answer and amended answer.

overruled, the party demurring may plead. The circuit court filed a written opinion, appellant's answer to be ffled, provided it set

The court should therefore have admitted the in which it rested its action upon two appellant's answer to be ffled, provided it set grounds: (1) That neither the demurrer, the it did not set forth a defense, and according

forth a defense. The circuit court held that ( exceptions, nor the answer had been presentad in time; that all parties had been given think the circuit court was clearly in error,

ly excluded it. In this ruling, however, we 2d from June 3 until the second day of the Sep- since the answer, in addition to several detember term to file exceptions, but that appel- fenses raising purely legal questions which lant had failed within that time to do any are not now decided, expressly controverted thing, and that no exceptions were tendered the correctnes of the claim of the plaintiff for until September 20, 1916, when the case was $3,082.16, and affirmatively alleged that said under discussion upon the motion to confirm claim did not exceed $2,802.28. In this rethe commissioner's report; and (2) that nei-spect, at least, the answer certainly stated

, ther the exceptions nor the answers presenta defense, and should have been filed. The ed a defense. So the only question before the other features of the answer as amended are court is this: Did the circuit court, under not now passed upon, since the issues may be the circumstances, abuse its discretion in re- changed by subsequent pleadings. fusing to file appellant's exceptions and an

Section 2472 of the Kentucky Statutes reswers?

quires the commissioner to fix a time and [1] It is conceded that the answer was not place at which he will hear proof touching tendered within the time prescribed by sec- claims against the property, and at such heartion 367a of the Civil Code of Practice, and ing any person whose interest may be afthat the exceptions were not tendered within fected by the suit may contest any claim the time fixed by the order. The statute, presented. The commissioner failed, howhowever, is very liberal in its terms, and ever, to follow the statute in this respect, expressly vests in the trial court a broad and the appellant was thereby deprived of discretion in determining whether pleadings his right to contest the plaintiff's claim beshould be permitted to be filed out of time. fore the commissioner. But, as the answer Weldon v. Finley, 104 S. W. 101, 31 Ky. presented the same questions that the exLaw Rep. 1051. Furthermore, it provides ceptions raised, we have confined the conthat the excuse for the failure to file the sideration of the appeal to the case presentpleading within the time prescribed by the ed by the answer. statute must be shown by affidavit; other

Judgment reversed, and action remanded wise the litigant has not presented sufficient for further proceedings consistent with this ground to excite the attention of the court.

opinion. Again, in permitting a party to file a pleading out of time, it is entirely proper for the

(180 Ky. 562) court to place upon the delinquent party such KENNEDY et al. v. HICKS et ux. * terms as will not delay the trial of the case (Court of Appeals of Kentucky. May 14, 1918.) beyond a period that is required for a speedy preparation upon the part of the delinquent, 1. VENUE Ow4, 5(2)—MINERALS-PURCHASE

MONEY LIENS. and to require him to pay the costs incident to

An action to enforce a lien for royalties the filing of his belated pleading, which may upon minerals after separation is transitory, be ordered to be controverted of record, if but if the vendor conveys title, retaining a purthe court should deem it proper and just to chase-money lien, payable before severance, an

action to enforce the lien by sale of the minerals all parties concerned.

while a part of the land is local to the county [2] But, where the court has reopened the where the land lies, under Civ. Code Prac. 8 62,

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