Opinion
Decided June 19, 1931.
Appeal from Elliott Circuit Court.
MARCUS C. REDWINE for appellant.
W.E. MOBLEY for appellees.
Reversing.
The Kentucky Culvert Manufacturing Company, is asking us for relief denied it by the trial court. Many years ago this culvert company, sold to the Elliott county fiscal court a number of culverts, for which the county issued to the culvert company a number of warrants. Some of these it paid, but others it did not, and some years ago a suit upon them was filed, and a judgment obtained against the county; it did not pay the judgment and a second suit was filed against the fiscal court, wherein a mandamus was sought, and, on July 13, 1928. obtained, in which the court adjudged:
"That the judgment claim of the plaintiff shall be paid by the defendant, Elliott fiscal court, and said court and the members thereof, to-wit: G.W. Howard, County Judge, and B.J. Pennington, Bob Miller, L.F. Skaggs, and D.J. Ison, convene and order the payment of plaintiff's judgment debt herein as follows:
"That said Fiscal Court appropriate and arrange to pay to plaintiff out of its 1928 levy or revenue the sum of $300.00 in 1928, and further that said court arrange to and pay to plaintiff out of 1929 levy or revenue the sum of $500.00 in 1929. That in the event that the defendant is not able out of its current revenues and levies to pay said sums then it is ordered by this court that said fiscal court convene and order and lay a levy for 1929 sufficient to provide for the payment and liquidation of the plaintiff's debt and interest and said Fiscal Court is hereby ordered and directed under the extraordinary remedy and writ of mandamus to carry out and obey this order" . . . "in the event that the defendant obeys and pays the amounts designated above out of the levy of 1928 and 1929, in the year 1928 and 1929, then it is ordered that defendant may pay the balance of plaintiff debt and interest in the sum of $79.48 out of the levy and revenues of 1930, at which time and from which source all the accured interest on each named warrant at the rate of 6% per annum shall also be paid, together with the costs herein expended. . . . And it is ordered that this cause may be re-docketed without notice to enforce the performance of this writ of mandamus and the payment of the judgment of plaintiff as herein directed."
On January 21, 1931, the culvert company filed in the circuit court a motion reciting therein this judgment of mandamus and filing a copy of it, and further reciting that there was an unpaid balance of said debt of $370, and $22.65 cost. It asked the court to punish the members of the fiscal court for failing to obey the mandamus and pay this debt.
The members of the fiscal court were served with notice. No response appears to have been made, and at the March term, 1931, the court made this order:
"This cause being submitted and coming on to be heard, and the Court after considering the pleadings, motion, notices, exhibits and certified copies of the Mandamus Judgment, and being advised, overrules the plaintiff's Motion, and it is ordered that the relief sought looking toward the enforcement of the plaintiff's Mandamus order herein against the defendant be denied, to all of which the plaintiff objects and excepts, and prays an appeal to the Court of Appeals, which is granted."
That was erroneous. The court should have required the fiscal court to pay this balance due on this judgment within sixty days, and, if that be not done, should punish the members of the fiscal court for disobedience of its mandate. The judgment is reversed.