Commonwealth v. Osborne

Opinion by

Judge Lindsay:

The petition does not show that the act of February 17, 1866, was approved by a majority of the qualified voters of Lawrence County. Hence we can not adjudge that the county court of that county had the authority to take and approve the bond sued on.

Waiving this defect, however, the petition, as amended, is. still fatally defective.

There could be no cause of action against Osborne, the superintendent of roads, until he was directed, by the county court, to turn over the property and fund's in his hands, to his successor in office, or to some other agent of the county, and refused or failed to observe the order. The petition did not allege that he had a successor in office, nor did it show that the county court ever made any order touching the property, and money for which Osborne was sued, except to direct the county attorney to institute the action.

The averment is, that the county court by “its proper agents and officers, made frequent and repeated demands,” etc.

The county court speaks only through its orders entered of record. Its agents must trace their authority to such orders, and from them the extent of their rights or powers, are to be determined.

If the county court appointed an agent to demand and receive the property and money in Osborne’s hands, or if it directed one of the county officers to perform this duty, that fact should have been alleged, so that it might be determined from the petition whether the agent or officer making the demand was, as matter of law, the proper agent or officer of the county court. The statement that he was the proper “agent or officer,” is but an allegation of a conclusion of law. The demurrer was properly sustained, and appellant, failing to amend further, the court did not err in dismissing the petition.

Hatcher & Burns, for appellant. Rodman, for appellees.

Judgment affirmed.