Kinnison v. Carpenter, &C.
| Decision Date | 04 September 1873 |
| Citation | 72 Ky. 599 |
| Parties | Kinnison v. Carpenter, &c. |
| Court | Kentucky Court of Appeals |
APPEAL FROM BULLITT CIRCUIT COURT.
R. H. FIELD, For Appellant.
A. H. FIELD, WM. WILSON, For Appellees.
JUDGE PRYOR DELIVERED THE OPINION OF THE COURT.
On the 15th of February, 1858, David L. Brooks, Jas. H. Anderson, and the present appellant, A. C. Kinnison, became the sureties of William Shain in a bond executed by the latter in the Bullitt County Court as the statutory guardian of William and Nathan Morrow. Kinnison, in order to be relieved from liability as surety on this bond, instituted proceedings for that purpose requiring Shain to give an additional bond, and on the 16th of January, 1860, an order was made in the county court accepting one H. B. North as surety in lieu of Kinnison, and releasing the latter from further liability. Shain, the guardian, shortly afterward died, largely indebted to his wards. In August, 1865, they instituted an action against the sureties, not including the appellant Kinnison, to recover the balance due them on settlement. A judgment was rendered in favor of the wards on the 19th of April, 1867, by which Brooks and Anderson, two of the sureties, were made liable for several hundred dollars, and North released from any responsibility, the court adjudging that the paper to which the name of North was fixed was not obligatory upon him. The paper signed by North, and upon which Kinnison claimed to have been released, was a printed form of a guardian's bond with none of the blanks filled, and dated on the 16th of January, 1860. David L. Brooks, one of the sureties, having paid off the judgment, instituted the present action against Kinnison for contribution, and recovered the sum of five hundred and seventy-three dollars. The case was brought to this court by an appeal, and it was again held, as in the case of Brooks v. Morrow (MS. Opinion), that the order of the county court releasing a surety from liability without taking another bond was a nullity, and that a signature appended to a mere blank form was not obligatory on the party signing it. A cross-pleading was filed by Kinnison on the 21st of October, 1868, in the action of Brooks against him, by which Kinnison sought to recover of the present appellees, Carpenter, the county judge, and Lee and others, the sureties of Samuels, the county clerk, the amount of any judgment that Brooks might recover against him; it being alleged in this pleading that the liability of the appellant, if any, originated from the willful neglect of Carpenter, then judge, and Samuels, then clerk of the Bullitt County Court, in not filling up the blanks in the bond signed by North, or taking from him such a bond as would have released him (Kinnison) from any further responsibility as surety. A demurrer was filed by the sureties of Samuels, the county clerk, to this cross-pleading and sustained, and a demurrer and answer was filed by Carpenter, the county judge. The demurrer of Carpenter seems not to have been disposed of, but the court upon the final hearing adjudged in his favor on a paragraph in the answer relying on the statute of limitations.
The only questions presented in this appeal are, did the court err in sustaining the demurrer filed by the sureties of the county clerk, and in adjudging that the statute of limitations was available as a defense for the county judge?
It is the duty of the clerk of a county court to draft all the orders, and prepare such other writings as may be required of him by the presiding judge and necessary for the transaction of the business of the court. He acts in the discharge of these duties under the direction and supervision of his superior, the judge, and when these acts, consisting in orders of the court and such writings as may be required to facilitate its business, have been approved and signed, it must be presumed that they were done and performed under the sanction and direction of the judge. It is made the duty of the latter to see that the proper orders are made. These orders are required to be read in open court and then to be signed by him. The judge alone approves of such sureties and bonds as may be tendered in court by guardians and other fiduciaries. The clerk has no power to accept such bonds or to fill up the blanks until required by the judge, and hence the necessity of alleging that he was required to perform these duties, and his refusal to discharge them, before he can be made liable, if such liability can exist at all. There is a manifest difference between the case under consideration and that class of cases where it is primarily the duty of the clerk to perform the services, and in the discharge of which he alone must act without regard to the dictation of any superior. When a clerk fails to record a deed left in his office for record he is responsible for the injury sustained or, as said by this court in the case of The Commonwealth v. Chambers (1 Dana, 12), "an action on an official bond of a clerk for failing to make out a complete record for this court," the only inquiry of consequence is,
In the cases cited the presiding judge had no power to control the action of the clerk, while in the case before us it was the duty of the clerk to make such entries only and perform such services as the judge might direct. It is difficult to conceive how a mere ministerial officer, such as a clerk, can be made liable for doing that which has been approved by a superior, whose orders when in the discharge of such services he is compelled to obey, in the absence of an allegation of some fraudulent and corrupt act on the part of both. There is no such allegation in the cross-pleading, nor even an allegation that the clerk was directed to fill up the blank bond. The demurrer in behalf of the sureties of Samuels was therefore properly sustained.
The Revised Statutes (chapter "Guardian and Ward") gives to the ward a right of action against the judge of the county court for his failure to take bond with good security from his guardian. This right of action is as to the ward alone, and if the judge is responsible in this case to the surety, who has used all the means provided by law to indemnify himself against loss, and is deprived of that indemnity by the misfeasance or the non-feasance of the judge, the liability of the latter must be made to rest upon common-law principles, and when failing to discharge a plain ministerial duty, he may be made responsible.
The record shows that the appellant followed the letter of the statute in order to obtain indemnity on account of his liability as surety. The guardian Shain, by reason of the motion of the appellant, brought into court and offered as surety in lieu of the latter H. B. North, of unquestioned solvency, willing to sign the bond and save appellant harmless in the premises.
The order of the county court recited the fact that the bond had been given, but by reason of the misfeasance of the judge in not having it properly executed by filling up the blanks, and in accepting it in that...
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