Commonwealth v. Tilton

• Citation: 111 Ky. 341,63 S.W. 602
• Parties: COMMONWEALTH, to Use of BUCKLER, v. TILTON et al. [1]
• Decision Date: 18 June 1901
• Court: Court of Appeals of Kentucky

63 S.W. 602

111 Ky. 341

COMMONWEALTH, to Use of BUCKLER, v. TILTON et al. ^[1]

Court of Appeals of Kentucky.

June 18, 1901

Appeal from circuit court, Robertson county.

"To be officially reported."

Action by the commonwealth of Kentucky, for the use of Winfield Buckler, against N. A. Tilton and others, on the bond of N A. Tilton as county judge. Judgment for defendants, and plaintiff appeals. Affirmed.

Winfield Buckler, for appellant.

J. J Osborne and Kennedy & Williamson, for appellees.

BURNAM J.

George L. Linville, as sheriff of Robertson county, defaulted in the payment of the county levy for the year 1890, in the sum of $3,600, and suit was instituted against him and his securities upon his county-levy bond to recover this sum. Peter Linville, whose name was subscribed as one of the securities upon this bond, successfully defended the suit upon the ground that his name had been signed on the bond as surety by another for him, by his verbal authority, and it was held that none of the securities were bound on the obligation. See Wilson v. Linville, 96 Ky. 50, 27 S.W. 857. After this case was finally disposed of, G. L Linville, as principal, with Peter Linville as his security, made a written proposition to the fiscal court of Robertson county "to pay $2,000 in cash on or before March 1, 1895, in full satisfaction and settlement of any and all claims or demands that Robertson county might have against G. L. Linville or any other person because of any transaction or claim growing out of any or all county-levy bonds executed or attempted to be executed by the said G. L. Linville as sheriff of Robertson county." After full discussion and inquiry as to the financial condition of G. L. Linville, this proposition was accepted by the fiscal court, and the money was paid. At this meeting the county judge, Tilton, declined to preside or to participate in the proceedings. After the compromise had been effected, the appellant in this proceeding, who is a resident of Nicholas county, brought this action, in the name of the commonwealth, for his own use and other taxpayers of Robertson county, against Tilton, the ex-county judge, on his official bond, for having negligently accepted Linville's bond, by which the county of Robertson had lost the sum of $1,600 or $1,800 in taxes which had been collected by the sheriff, and which he failed to pay over to the treasurer. It is also alleged by the appellant that he had made written demand upon each member of the fiscal court of Robertson county to institute the proceeding, and that they had failed and refused to do so. A special demurrer, based upon appellant's capacity to maintain this suit, was sustained in the circuit court, which was reversed by this court, in an opinion reported in 54 S.W. 11. After the return of the case to the lower court, a general demurrer was filed by appellees, which was overruled. Thereupon the defendants filed an answer, in which they rely upon a number of defenses to escape liability. First, they plead that, in accepting the county-levy bond, the defendant Tilton acted in a judicial capacity, and is therefore not liable in an action for damages for any error he may have made in the acceptance of such bond. They next plead the action of the fiscal court in accepting the $2,000 from the sheriff and his father as a complete accord and satisfaction of any and all demands which the county may have had, growing out of the execution of the bond in 1890. Lastly they plead the five-years statute of limitations in bar of plaintiff's right to recover. We will consider these defenses inversely.

When the case of Kinnison v. Carpenter, 72 Ky. 600, was decided, the Revised Statutes (chapter on "Guardian and Ward") gave to the ward a right of action against the judge of the county court for his failure to take bond, with good security, from his guardian, but did not require him to execute bond for the faithful discharge of his duties; and that proceeding was instituted under section 2, art. 3, c. 63, of the Revised Statutes, which provides, "An action for an injury to the rights of the plaintiff not arising on the contract and not hereinafter enumerated shall be commenced within 5 years after the cause of action accrues." And it was held in that case that the cause of action accrued at the time the bond was taken, on the 16th of January, 1860. But after the decision in that case the legislature required the county judge to give bond for the faithful discharge of his duties, and this action is not under the statute supra, but on the bond, and the limitation is therefore 15 years.

The plea of accord and satisfaction based upon the compromise made by the fiscal court with Linville in December, 1894, is also of no avail, under section 52 of the constitution, which provides "that the general assembly shall have no power to release, extinguish or authorize the releasing or extinguishing, in whole or in part, the indebtedness or liability of any corporation or individual to this commonwealth, or to any county or municipality thereof." This provision was in force at the time of this attempted settlement, and the county cour...