Com. v. Tate

• Citation: 33 S.W. 405
• Parties: COMMONWEALTH v. TATE et al.
• Decision Date: 19 December 1895
• Court: Court of Appeals of Kentucky

33 S.W. 405

COMMONWEALTH v. TATE et al.

Court of Appeals of Kentucky.

December 19, 1895

Appeal from circuit court, Franklin county.

"Not to be officially reported."

Action by the commonwealth of Kentucky against James W. Tate and others on an official bond. There were a verdict and a judgment for defendants, and the commonwealth appeals. Affirmed.

Wm. J Hendrick and Thomas H. Hines, for the Commonwealth.

A Duvall, Wm. Lindsay, D. W. Lindsey, F. Chinn, J. W. Rodman P. B. Thompson, Sr., and W. A. Suddith, for appellees.

PRYOR C.J.

This action was instituted in the name of the commonwealth against the sureties of James W. Tate on his official bond as treasurer, beginning on the first Monday in January, 1882 and ending on the first Monday in January, 1884. The bond in substance is "that Tate, as treasurer, shall well and truly discharge all the duties imposed on him by law as treasurer"; and the breaches alleged are that the treasurer, between the dates mentioned, and during the term for which appellees were liable as his sureties, converted to his own use, or otherwise misappropriated, large sums of money, amounting to $59,000, belonging to the state, and of which he had the actual custody. Tate became treasurer of the state in August of the year 1867, and continued in office, being elected every two years, until the year 1887, was elected in August of that year, and during that term left the state. This case is here for the second time, having been reversed on the appeal of the commonwealth, and returned to the lower court for a second trial. On the first trial the court below held that there was no evidence of any liability on the bond executed in January, 1882, and instructed the jury to find for the sureties; and at the retrial of the case, from which this appeal is taken, the jury, after hearing the evidence, returned a like verdict. The case as it existed before the trial now being considered is reported in 89 Ky. 593, 13 S.W. 113. There was also pending in this court, at the same time, an appeal from a judgment in an action against these same sureties on his official bond, to recover for his defalcation for years 1886, 1887, and 1888. That case was also reversed, and is found reported in 89 Ky. 611, 13 S.W. 117. That case has since been decided, resulting in a verdict for judgment against Tate's sureties for $24,000, reference to which has been made in the bill of exceptions or evidence in this case, but in fact it has no bearing upon the present issue, except to show the continued defaulting of this official. The defense interposed by the sureties on the first hearing, and which constituted one of the grounds for the trial court's action in directing a nonsuit, was settled by this court in the opinion rendered. The defense was that the state, prior to their becoming sureties, through its officials required by law to make settlements with the treasurer, had found his accounts all correct, when he in fact had failed to account for large sums of money due the state, of which fact they were ignorant, and the existence of which the state officials authorized to make the settlement, by the exercise of the slightest care, could have ascertained, and for that reason they were released from liability, as at the time they became bound on his bond the settlements showed that the treasurer up to that time had faithfully discharged his duties. It was also held that the failure of one or more agents of the state to discharge their duties did not relieve another official (or his sureties) from the discharge of his duty; and hence, when this case was returned, the only issue to be determined by the jury was: Did the treasurer make any misappropriation of the state's moneys between January, 1882, and January, 1884, the term for which the sureties were bound by the bond declared on? There was a general denial of any default between the two periods, and the commonwealth, in order to make out a case against the sureties, was compelled to show the amount of moneys on hand or in the treasury when this bond was executed. How much was received during the term, and the two amounts added, would show the extent of the sureties' liability, from which is to be deducted the amount paid out by the treasurer; and the balance due either way could in this manner be ascertained.

The burden would, doubtless, have been on the sureties to show the amounts paid out by the treasurer but for the averments contained in the pleadings, in which it is alleged, and not denied, that defalcations to a large amount existed long prior to the time at which the bond of the sureties had been executed, and these defalcations had entered into and formed part of the sums charged against the treasurer at the beginning of his term, in January, 1882. There is a defalcation conceded of $58,000 long prior to the date of the bond, and which had been included in the sums charged against the treasurer as being in his custody in January, 1882; and...