Wellman v. City of Owensboro

In Wellman v. City of Owensboro, Ky., 282 S.W.2d 628 (1955), the notice that was given to the city attorney of Owensboro was held to be insufficient even though Owensboro had adopted a special ordinance that designated the city attorney as the city's representative in all lawsuits filed against it. Wellman argued that when CR 5.02 was read in conjunction with KRS 411.110, CR 5.02 mandated that notice be served upon the city attorney and not the mayor or city clerk. The former Court of Appeals disagreed and stated: To hold that Rule 5.02 authorizes the service of the notice required by KRS 411.110 on the city attorney rather than on those city officials enumerated in the statute would defeat the express wording of the statute. We may not disregard the express commands of the Legislature accompanying permission to sue a municipality. The Legislature has said that notice given to particular public officers shall be a prerequisite to the right to sue. Service of the notice in conformity to the statute is mandatory. This court is without power to substitute something else. Treitz v. City of Louisville, 292 Ky. 654, 167 S.W.2d 860. (282 S.W.2d at 630.)