Legal Opinion

Merrill v. Board of County Commissioners

Court of Appeals of Kansas

Decided February 10, 1898No. 196PublishedCited by 9 opinions

Error from Ness district court; J. E. Andrews, judge. This action was commenced by the defendant in error as plaintiff, to recover the sum of $861.30 and an equal amount as a penalty under section 1658, General Statutes of 1889, it being alleged that the defendant, Merrill, had unlawfully received that sum from the treasury of Ness county.

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Error from Ness district court; J. E. Andrews, judge. This action was commenced by the defendant in error as plaintiff, to recover the sum of $861.30 and an equal amount as a penalty under section 1658, General Statutes of 1889, it being alleged that the defendant, Merrill, had unlawfully received that sum from the treasury of Ness county. Merrill’s claim upon which the payment had been made originated in connection with refunding the outstanding warrants of Ness county and the issuing of bonds to the amount of $30,000 in exchange therefor, he having acted as the agent of the commissioners…

1Opinion of the Court

The opinion of the court was delivered by

Milton, J. :

I. The penalty portion of the judgment was erroneous. More than a year had elapsed after the payment of the warrant in question, and after demand for its repayment, prior to the commencement of this action. Recovery of the penalty was barred by subdivision 4 of section 18 of the civil code.

*720II. As to the plea of res adjudicata. It is settled law that where a demurrer to the merits of a petition is sustained and a judgment for costs is thereupon entered in favor of the party demurring, such judgment, unless reversed, is as final and…

2Cases cited4 opinions

  1. House v. MullenSupreme Court of the United States · 1875
  2. Griffin v. SeymourSupreme Court of Iowa · 1863
  3. Smith v. AuldSupreme Court of Kansas · 1884
  4. Griffin v. County of GrundySupreme Court of Iowa · 1859

3Cited by9 opinions

  1. Pennington & Evans v. Douglas, Augusta & Gulf Railway Co.Court of Appeals of Georgia · 1908
  2. Gunn v. JamesSupreme Court of Georgia · 1904
  3. State ex rel. Schmidt v. Superior CourtWashington Supreme Court · 1911
  4. Dickson v. MacKeySupreme Court of Oklahoma · 1923
  5. Holderman v. HoodSupreme Court of Kansas · 1908

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