Garrett & Key v. City of Marshall ( 1881 )

Opinion by

Winkler, J.

§ 565. Draft upon particular fund; allegations necessary in suit upon, against drawee. Appellants sued appelleé upon drafts drawn against it upon the school fund of the city. It was not alleged in the petition that appellee had any such fund on hand, or that an election had been held by which the city was authorized to levy a tax to raise such a fund, as provided by statute. [Rev. Stats. 3785 et seq.] A demurrer was sustained to the petition, and, appellants declining to amend,their suit was dismissed. Held, the court did not err in sustaining the demurrer to the petition. The averments of the petition did not set out a cause of action against appellee, in that it did not show that there were any funds in its hands subject to the draft, etc. [1 Dillon on Munic. Oorp. § 505.]

Affirmed.