Bush v. Board of Educ. of Clark County
| Decision Date | 06 March 1931 |
| Citation | 37 S.W.2d 849,238 Ky. 297 |
| Parties | BUSH et al. v. BOARD OF EDUCATION OF CLARK COUNTY. |
| Court | Kentucky Court of Appeals |
Rehearing Denied May 12, 1931.
Appeal from Circuit Court, Clark County.
Action by the Clark County Board of Education against J. D. Bush and others. From the judgment, defendants appeal.
Reversed and remanded.
Leo T Wolford, of Louisville, D. L. Pendleton, of Winchester, R. W Keenon, of Lexington, and Bruce & Bullitt, of Louisville, for appellants.
Benton & Davis, of Winchester, for appellee.
The Clark county board of education instituted this action against J. B. Bush, former sheriff of Clark county, and his sureties, claiming that for the years 1922, 1923, 1924, and 1925, when he was sheriff, he failed to pay to the board the full amount of money due the school fund with which he was chargeable.
As the action must be determined from a consideration of the statutory provisions governing such matters, it is important to understand the steps taken by the county board of education, and this means that it is necessary to consider the pleadings, the proof, and the statutes.
Omitting the formal parts of the petition, we find allegations to the following effect:
That for the year 1922 Bush collected for common school purposes the sum of $51,451.55, and that of this sum he was entitled to a commission of $514.52, leaving a balance of $50,937.03 which should have been paid to the board by the 1st day of January, 1923, but, instead of paying that sum, he only paid to the board $43,679.36, leaving a balance due the board on the 1st day of January, 1923, amounting to $5,892.60.
That for the year 1923 Bush collected for common school purposes a total sum of $73,650.39, and that he was entitled to a commission out of this amounting to $736.50, leaving a balance due the school fund of $72,913.89, but that Bush paid to the board only $72,337.28, leaving a balance unpaid for that year of $576.61.
That for the year 1924 Bush collected for common school purposes a total of $74,199.53 on which he was entitled to a commission of $742, leaving a balance due the fund of $73,457.53, but that Bush paid over to the board only $73,039.38, leaving a balance due for that year of $418.15.
That for the year 1925 Bush collected for common school purposes a total of $74,865.42, on which he was entitled to a commission of $748.65, leaving a balance due the fund of $74,116.77, but that Bush only paid to the board $73,423.21, leaving a balance for that year of $693.56.
The prayer of the petition was for the recovery of the respective amounts for each of the years with interest from the 1st day of January immediately following the year in which the amount collected should have been paid to the board.
A general demurrer was filed to the petition by all of the defendants except the Fidelity & Deposit Company, which first filed a motion asking that the case be transferred to equity. The motion to transfer to equity was overruled, as was the general demurrer to the petition.
The defendants filed an answer making specific denial of the allegations in the petition, and, in addition, they pointed out certain items for which they claimed the sheriff was entitled to credit which had not been mentioned in the petition. They also alleged in their answer that the sheriff had made a complete settlement with the Clark fiscal court for each of the years mentioned in the petition, and in a separate paragraph the settlements were fully pleaded, referred to as exhibits, and made a part of the answer.
A third paragraph of the answer set up a plea of limitation as to the claim for the year 1922 on the ground that more than five years had elapsed since the sheriff had made a settlement for that year before the institution of the suit.
The board filed a demurrer to the second and third paragraphs of the answer, and, in addition, filed a motion to strike certain language from the first. The court sustained the general demurrer to the second and third paragraphs of the answer, and sustained the motion to strike certain matter from the first paragraph of the answer. Defendants filed an amended answer, in which it was alleged that each settlement covering each of the years in question was made with the fiscal court and approved by it and thereafter filed in the office of the Clark county court and duly recorded in a book kept for the recording of such settlements, and that no exceptions were filed to the settlements for either of the years mentioned. The amended answer also alleged that the custom of making and approving such settlements was followed, and that it had never been the practice in Clark county to docket the sheriff's settlement except in cases where exceptions were filed to it.
The board objected to the filing of the amended answer, and the court sustained the objection, and it was not filed, although made a part of the record for the purpose of appeal.
On motion of the board, Bush was required to return to the county clerk's office the tax books showing the tax bill stubs for each of the years when he was sheriff, and the county clerk was required to deposit the books with the circuit court clerk, who should safely keep them with the right of examination in the parties to the action and also to the commissioner appointed to hear proof and report to the court. The court, on his own motion, referred the matter to the master commissioner of his court, with directions that he ascertain and report to the court the sums of money that Bush as sheriff had collected on account of the common school funds for the years when he was sheriff, and to ascertain the amount of the commissions to which the sheriff was legally entitled for making collection and distribution of the funds and any other credits to which he might be legally entitled, and also the sums paid by plaintiff to the board on account of the common school fund for each of the years. And the commissioner was further directed to find and report whether there was any balance due from Bush to the board for any of the years mentioned, and from what date interest should be charged, if any sum was found to be due, and what penalties, if any, should be legally chargeable to Bush on account of his failure, if there was any failure, to pay to the board money collected for the school fund.
The commissioner was directed to hear and preserve such evidence as the parties should produce before him, and was given authority to fix a time for the hearings.
Thereafter the master commissioner made a report in which he stated, in substance, that the only witness introduced who testified as to the audit of the books was W. G. Gustetter, who testified at length as to the audit and his findings, and filed with his deposition exhibits setting out the audit in detail. The commissioner reported that the testimony of Gustetter with the exhibits was very conclusive as to the correctness of his findings. He stated that other witnesses of minor importance were introduced by the board, and that very little testimony was produced by the defendants except as to conversations between Mr. Gustetter and Mr. Bush, and that there was no testimony attacking the correctness of the report and findings made by Mr. Gustetter. He reported that the board was entitled to recover the amount set out in the petition, but it was not entitled to recover any penalties. He made the proof taken by him a part of his report.
After the report of the commissioner was filed, although he inadvertently stated that the board was entitled to recover the sums mentioned in the petition when he doubtless meant it was entitled to recover the sums established by the proof, the board filed an amended petition making corrections to conform to the proof. The differences in the amended petition and in the original petition were not of material importance.
Bush and his sureties filed exceptions to the report. The first exception related to the form and substance of the report. It was excepted to because it made no findings as to the amounts with which the sheriff should have been charged for each of the years, or the amounts which were paid. The second exception was based on the ground that the report was only a conclusion and not a finding of facts. The third exception was that the commissioner failed to pass on exceptions filed to the deposition of Gustetter, and that he found that the testimony of Gustetter was true, when as a matter of fact it was hearsay, and was not based on the best evidence obtainable. The fourth exception was on the ground that Gustetter was discredited, in that the company for which he worked had made a contract with the board whereby it was to receive one-half of the amount that should be recovered in the action. The fifth exception was to the effect that the testimony of Gustetter on which the commissioner based his report was not founded on records constituting his best evidence, or any evidence, of the amounts chargeable to Bush, as the testimony was based on the stubs of the tax books, and that the books were mutilated, and there was no proof showing that they had been preserved in such a manner as to render them competent evidence. The sixth exception was to the effect that the report of the master commissioner was incorrect because the only proper basis for an audit was the using of the recapitulation taken from the books of the county tax commissioner. The seventh exception was to the effect that the report was incorrect in its findings that the amount claimed in the petition was due, and the eighth and last exception was based on the action of the commissioner in disregarding the settlements which Bush had made with the fiscal court.
The testimony consisted almost wholly of the...
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