State ex rel. McKey v. Cooper

Citations

• 99 Ohio St. (N.S.) 258

Syllabus

<p>Mandamus — Writ not to issue, when — 1Conditions precedent— Right of relator and duty of respondent — Substantial doubt exists, when — Fees due county treasurer — Claimed by trustee in bankruptcy, successor of assignee for creditors, and others.</p> <p>1. A writ of mandamus will not be granted to compel a county auditor to issue a warrant upon the county treasurer for the payment of public funds, unless the relator’s right is clear, and the act to be enforced is one of legal obligation. (State, ex rel. Gallinger et al., v. Smith, Auditor, 71 Ohio St., 13, approved and followed.)</p> <p>2. There is a substantial doubt as to the right of a relator, as trustee in bankruptcy, to the fees due the bankrupt for services as' county treasurer, where such fees are also claimed by a trustee for creditors appointed to succeed an assignee named in a deed of assignment executed and delivered by such treasurer, and are further claimed by persons to whom they were assigned by him in writing before the deed of assignment was filed or bankruptcy proceedings commenced, and where it also appears that the fees in dispute have been paid upon order of court, to a receiver appointed upon a motion in aid of execution filed in an action against such treasurer in his individual capacity prior to the assignment and bankruptcy proceedings, in which action the defendant treasurer in his individual capacity was duly and legally served with summons. (State, ex rel. Hildebrandt, v. Stewart, 71 Ohio St., 55, approved and followed.)</p>