Commonwealth v. Tate

• Decision Date: 27 February 1890
• Citation: 13 S.W. 117,89 Ky. 608
• Parties: COMMONWEALTH v. TATE et al.
• Court: Kentucky Court of Appeals

13 S.W. 117

89 Ky. 608

COMMONWEALTH v. TATE et al.

Court of Appeals of Kentucky.

February 27, 1890

Appeal from circuit court, Franklin county.

"To be officially reported."

Thos H. Hines and P. W. Hardin, Atty. Gen., for the Commonwealth. Wm. Lindsay, D. W. Lindsey, A. Duvall, F. Chinn, J. W Rodman, W. A. Sudduth, and P. B. Thompson, Sr., for appellees.

BENNETT J.

The facts relating to the election of James W. Tate to the office of treasurer of this state, and his repeated elections to said office; his suspension from office; impeachment and removal,--are stated in the opinion in the case of James W Tate and his sureties on his official bond for the term of 1882 and 1883, this day rendered, (ante, 113.) This action is against his sureties on his official bonds for the two terms,--one for 1886 and 1887, and one for 1888 and 1889,--to recover the amount of said Tate's defalcations for either or both of said terms. The appellant, in paragraphs 1 and 2 set out a cause of action on each bond, and filed a copy of the same with each paragraph, except the amount of defalcation occurring in each term was left blank. In the third paragraph it reiterates substantially all the allegations of the first and second paragraphs, together with the additional statement that the amount of defalcation occurring in said two terms was $162,286.81; and that the appellant could not tell what part of said defalcation occurred during the term of 1886 and 1887, or what part occurred in the term of 1888, but it did occur during said terms; but the fact, as to the amount converted by Tate during each term, was peculiarly within his knowledge. The twenty-sixth section of the Civil Code provides: "Persons severally liable upon the same contract, and parties to bills of exchange, to promissory notes placed upon the footing of bills of exchange, or to common orders and checks, and sureties on the same or separate instruments, may, all or any of them, * * * be included in the same action, at the plaintiff's option." According to this provision of the Code, it seems that if the plaintiff holds two or more separate obligations for money, and the same sureties are to each obligation, all at the option of the plaintiff may be sued in the same action; or, if each obligation has a different set of sureties, they all may nevertheless be joined in the same action, at the plaintiff's option, provided the covenants are for the performance of substantially the same class of duties; for it is presumed that, if the codifiers had meant that the sureties should be the same to each obligation in order to entitle the plaintiff to join them in one action, they would have said so. It could have been done by simply using the expression, "if the sureties be the same on," preceding the word "separate." But they did not use this expression, nor any expression of similar import. But the language used, as before intimated, entitles the plaintiff, holding separate obligations, with different sureties to each, if these obligations are for the performance of substantially the same thing, to include them all in one action. Of course, in such case, there would have to be the same principal to each obligation; otherwise there would have to be separate actions. We have been speaking of the case of a totally different set of sureties, but with the same principal, to each instrument. But, where the sureties and principal are all the same to each instrument there can be no doubt of the plaintiff's right to include them in the same action; or if the principal is the same, and the sureties are in part the same to each instrument, there, also, can be no doubt of the plaintiff's right to join them all in the same action; and, if possible, it is still clearer that he may include those that are the same to each instrument in the same action, for the Code expressly provides that he may sue any part of them at his option. While it is true that they all may be included in the same action, yet where there are two or more instruments, although the sureties sued are the...