Bradley v. City of Georgetown

Opinion of the court by JUDGE BARKER Affirming. The appellant, A. M. Bradley, was elected treasurer of the city of Georgetown, Ky., at the general election in November, 1901. The canvassing board awarded the certificate to his opponent, George C. Wolfe. A contest before the [737] board of contest resulted in'favor of Wolfe, as did also an appeal to the Scott circuit court. On appeal to this court, the judgment in favor of Wolfe was reversed, in December, 1902. A petition for rehearing was filed, which was overruled in April, 1903, at which time the mandate issued» Upon the filing of the mandate in the lower court, a final judgment was .entered in favor of appellant, and he was then inducted into office, and has occupied it since. Wolfe occupied appellant’s office for one year, three months, and twenty-one days. The salary, as fixed by law, is $600 per annum, payable monthly. During the time Wolfe was de facto treasurer, he was paid the sum of $786.67. He is now insolvent, and appellant instituted this action to recover from- the city of Georgetown the salary paid to him during the period mentioned. The petition sets out the facts as herein narrated. A general demurrer was filed by the municipality, which was sustained by the court, and the petition dismissed. This judgment appellant seeks to reverse. Counsel for appellant concedes that, in the ease of Nall v. Coulter, Auditor, 117 Ky., 747, 78 S. W., 110, 25 Ky. Law Rep., 1891, all of appellant’s case was decided adversely, except in this: he contends that after the ease against Wolfe was reversed, in December, 1902, the municipality had no right to pay over to the incumbent the salary, and that he is entitled to recover so much of it as was paid after that time. To this we can not agree. The filing of the petition for rehearing within the time allowed by law suspended the issuance of the mandate, and the judgment of reversal did not become final until the petition was overruled. Civ. Code Prac., section 760; Cline v. Wrightson, 7 Ky. Law Rep., 215. Subsection 12, section 1596a, Ky. St., 1903, which regulates election contests, after prescribing the mode of contest and appeal, both [738] to the circuit court and court of appeals, contains the following: “On the production of a copy of the final judgment, the successful party shall Tbe permitted to qualify, or be commissioned, or a writ of new election shall be issued, as the judgment may require. . . .” The final judgment meant by the statute, as applied to this case, is that entered by the circuit judge in pursuance of the mandate of this court, and it was upon production of a copy thereof that appellant was entitled to be inducted into his office, and from that time on to demand and receive the emoluments thereof. Until that lime, Wolfe held the office under his certificate of election, and the city had the right to regard him as the rightful incumbent, and to pay him the salary. 'The case of Nall v. Coulter, Auditor, is conclusive of appellant’s whole cause of action, and the circuit judge properly dismissed his petition. Wherefore the judgment is affirmed.