Commonwealth v. Howard

• Decision Date: 23 June 1896
• Citation: 99 Ky. 542,36 S.W. 556
• Parties: COMMONWEALTH, to Use of CLAY COUNTY, v. HOWARD et al.
• Court: Kentucky Court of Appeals

36 S.W. 556

99 Ky. 542

COMMONWEALTH, to Use of CLAY COUNTY, v. HOWARD et al.

Court of Appeals of Kentucky.

June 23, 1896

Appeal from circuit court, Clay county.

"To be officially reported."

Action by the commonwealth, for the use of Clay county, against A B. Howard and others. From a judgment for defendants other than Howard, plaintiff appeals. Reversed.

Tinsley & Faulkner, for appellant.

Thos H. Hines, for appellees.

GUFFY J.

This action was instituted in the Clay circuit court in the name of the commonwealth of Kentucky, for the use of Clay county against A. B. Howard, late sheriff of Clay county, and the other named appellees, his sureties on his bond, for the collection of ad valorem taxes authorized to be levied and collected for the use and benefit of Clay county for the year 1890. It is claimed in the pleadings that the said sheriff had collected the same, and that there was due from him $3,454.90, with interest from the 8th of May, 1893, which he on proper demand failed to pay over. Plaintiff also claims $371 in damages. Several defenses were relied on, some of which need not be noticed. A jury trial was waived, and the law and facts submitted to the court, and the court rendered judgment in appellant's favor against Howard for the sums claimed, but dismissed the action as to the other appellees and from that judgment, dismissing the action as to the appellees who were Howard's sureties, this appeal is prosecuted. A separate finding of law and facts was reported, and rendered by the court. Appellant's motion for new trial was overruled, and a reversal is now insisted on by appellant.

The finding of facts, as stated by the court, in substance shows that Howard was elected sheriff for 1890 and 1891, and acted as such during the year 1890, and collected the county dues sued for in this action, but that no valid order of the county court was ever made or signed accepting his bond, or approving the bond sued on herein, and no order at all accepting or approving his official bond as sheriff. The evidence introduced by the plaintiff shows that the order book of the Clay county court has a number of entries or orders on it. The commencement reads as follows: "Orders Clay county court, January special term, 1st day of January 1890. Present: "John S. Herd, P.J. C. C. C." Then follow two orders authorizing different parties to appropriate vacant land, etc. The next order recites the appearance of A. B. Howard, sheriff of Clay county, with sureties, naming them, and the execution of his revenue bond for 1890, and that the same was approved by the court. The next order recites the appearance of A. B. Howard, sheriff of Clay county, with the appellees as his sureties, and the execution and approval of his bond for the collection of the county levy for 1890. The next entry on the order book is: "January, 4th day, 1890." Then follows an order appointing a guardian. The next entry is as follows: "January special term, 4th day of January, 1890. Present: J. S. Herd, P.J. C. C. C." Then follows an order allowing some one to enter and appropriate vacant land. The next entry is: "Court adjourned until court in course. John S. Herd, P.J. C. C. C." All the foregoing orders, except the last one, are on page 286 of Order Book No. 2 of the Clay County Court. The last one is on page 287, and the signature of the judge is at the bottom of said order on page 287. The witness, who was county clerk, testified that there was no adjourning order on page 286, and that no other orders are on said...