Buckley v. Jenkins

• Decision Date: 16 December 1873
• Citation: 73 Ky. 21
• Parties: Buckley v. Jenkins.
• Court: Kentucky Court of Appeals

73 Ky. 21

Buckley v. Jenkins.

Court of Appeals of Kentucky.

December 16, 1873

APPEAL FROM OLDHAM CIRCUIT COURT.

GEO. C DRANE, For Appellant,

CITED

Revised Statutes, chap. 63, art. 4, sec. 9.

Act of 1796, 2 M. & B. 1139.

3 Bibb 269,Ormsby v. Letcher.

2 Marsh. 22, Sneed v. Hall.

8 Bush 589, Poston v. Smith's ex'r.

WM CARROLL, For Appellee.

OPINION

HARDIN CHIEF JUSTICE:

The appellee was commissioned as sheriff of Henry County in January, 1851, for a term of two years, and thereupon appointed the appellant Buckley his deputy, who executed to his principal a bond for the faithful discharge of his duties. The appellee again became sheriff for the years 1853-54, and again appointed the appellant his deputy, but without taking any bond of indemnity from him. On the 16th of March, 1868, the appellee brought this action against Buckley and his sureties, alleging that he had acted as deputy sheriff for the years 1851, 1852, and 1853, and of the state revenue and county levy for those years, collected by him, he had failed to pay over and was in arrears at least the sum of thirty-five hundred dollars. Buckley, as well as the sureties in his bond, relied on limitation as a bar to the action; and the court in its judgment sustained the defense of the sureties, and also of Buckley as to his collections for the year 1853, as to which he had given no bond, but adjudged against him on his bond the sum of $1,457.59 as for the balance of his collections for 1851 and 1852; and this appeal is prosecuted by him for a reversal of that judgment.

It is plain, we think, that more than fifteen years had elapsed when the suit was brought since the accrual of the plaintiff's cause of action on the bond; and this lapse of time would under ordinary circumstances have been a bar to the action on the bond, under sec. 1 of art. 3 of chap. 63 of the Revised Statutes. But it appears that during part of that time Buckley was absent from this state, and engaged in the service of the United States, as an officer in the Federal army in the late civil war; and the main and essential question to be determined in this case is whether such merely temporary absence from the state was such an obstruction to the prosecution of an action against Buckley as would according to sec. 9 of art. 4 of chap. 63 (supra ), prevent the running of the statute of limitations in his favor. Said sec. 9 is as follows: " When a cause of...