Commonwealth v. Tilton

• Decision Date: 08 December 1898
• Citation: 48 S.W. 148
• Parties: COMMONWEALTH, to Use of BUCKLER et al., v. TILTON et al. [1]
• Court: Kentucky Court of Appeals

48 S.W. 148

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

Court of Appeals of Kentucky.

December 8, 1898

Appeal from circuit court, Robertson county.

"To be officially reported."

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

Winfield Buckler, for appellant.

Hanson Kennedy and J. J. Osborne, for appellees.

WHITE J.

This action was brought in the Robertson circuit court, in the name of the commonwealth, for the use of Winfield Buckler and all other taxpayers of Robertson county, against the appellees, Tilton, ex county judge, and others, on his official bond. A special demurrer was filed to the petition and sustained; and, appellant failing to plead further, his petition was dismissed, and hence this appeal.

The petition contains the usual and necessary averments of the election of appellee Tilton and his qualification as county judge of Robertson, and the execution by him of his official bond. The terms of the bond are set out. It is alleged that while appellee was county judge, he negligently accepted from a sheriff a bond that was insufficient in law,--i. e. by reason of the appellee's permitting certain sureties' names to be signed by another, without written consent of such sureties, the bond was invalid,--and that the sheriff was insolvent. It is further alleged that, by reason of this insufficient bond and the insolvency of the sheriff, the county of Robertson had lost some $2,300 in taxes collected by the sheriff, which he failed to pay over to the treasurer and receiver appointed. The petition also alleges that the county judge then in office had failed and refused to consent to join as plaintiff, and refuses to take any steps to recover the amount alleged to be due, and the county judge then in office is made a party defendant. By an amendment the whole board of justices who compose the fiscal court are made defendants. The petition nowhere alleges that the fiscal court had ever refused to take steps to recover this amount due, or had refused to authorize suit to be brought, or even had ever been asked so to do, and had failed. Ky. St. § 1834, provides: "Unless otherwise provided by law, the corporate powers of the several counties of this state shall be exercised by the fiscal courts thereof...