Davis v. National Surety Co. of New York

• Decision Date: 13 February 1931
• Citation: 237 Ky. 401
• Parties: Davis v. National Surety Company of New York.
• Court: United States State Supreme Court — District of Kentucky

Page 401

237 Ky. 401

Davis v. National Surety Company of New York.

Court of Appeals of Kentucky.

Decided February 13, 1931.

Clerks of Court. — Surety on circuit clerk's bond was not liable for costs which clerk collected as matter of convenience and not paid to sheriff (Ky. Stats., sec. 373).

Appeal from McCreary Circuit Court.

G.W. STEPHENS for appellant.

H.M. CLINE and HUMPHREY, CRAWFORD & MIDDLETON for appellee.

OPINION OF THE COURT BY JUDGE DIETZMAN.

Affirming.

The appellant, Thomas S. Davis, was the sheriff of McCreary county from January 1, 1922, to January 1, 1926, during which period Ulysses S. Wood was the clerk of the circuit court of that county. The appellee National Surety Company was the surety on the official bond of Wood, which was worded as follows:

"We, Ulysses Sidney Wood and the National Surety Company, his surety, do hereby covenant with the Commonwealth of Kentucky in the penal sum of Two Thousand ($2,000.00) Dollars, that the said U. S. Wood as clerk of the McCreary Circuit Court shall well and truly discharge all the duties of said officer according to law and pay over to all parties entitled thereto any funds that may come into his hands by virtue of his office as circuit court clerk aforesaid."

This bond was executed pursuant to section 373 of the Kentucky Statutes, which requires circuit clerks to execute bond conditioned on the faithful discharge by them of every duty of their office. During the term of Davis as sheriff and while Wood was circuit clerk, there was paid to Wood from time to time certain costs arising out of litigation to which the sheriff was entitled, but which, as is conceded by the parties hereto, it was no duty of the clerk to collect; the payments to the clerk being simply as a matter of convenience and practice on the part of the litigants. Wood failed to pay over to Davis all of these costs so collected, whereupon Davis brought this suit against Wood and the National Surety Company, the surety on his bond, to recover those costs so collected by the clerk and not turned over to the appellant. The demurrer of the surety company to the petition being sustained, and appellant declining to plead further as to the surety company, his petition was dismissed as to it, and he appeals.

The liability of Wood to the appellant is not involved on this appeal; the inquiry being confined to the question whether the surety company is liable under its bond for these costs.

In the case of Hardin's Executors v. Carrico, 3 Metc. 289, which involved the liability of the surety on the bond of the clerk of the circuit court, and in which we held the surety not liable, we said:

"But it is insisted that one of the official and legal duties of the clerk was to receive moneys deposited or paid into court, and to hold and pay over the same as directed by the court, and that consequently the sureties of Kelly were properly held liable under the general covenant which provides for the faithful discharge of his duties as clerk, according to law.

"The official duties of a clerk of the circuit court are, for the most part, prescribed and defined by statute. But we have been referred to no statutory provision, and have met with none, which enjoins or even authorizes the performance of the duty in question by the clerk. Nor is there anything in the nature of his office, or in his official relations to the court, which requires that he should become the receiver and custodian of money deposited or paid into court.. . . .

"And it may be said, with equal propriety here, that the practice which may have prevailed in our courts, of making the clerk the custodian of money deposited or paid into court, cannot have the effect to render the sureties of that officer answerable for his default with respect to a duty not prescribed nor even recognized by law, and which therefore the sureties cannot be supposed to have contemplated when they undertook for the faithful discharge of `his duties as clerk,' according to law."

In the case of Griffith v. Commonwealth, 10 Bush, 281, the facts were these: The clerk sued the sheriff and the surety on his bond for failure to account for and pay over certain fee bills due the clerk which had been listed with the sheriff for collection under the provisions of the statute making it the duty of the sheriff under certain states of case to collect officers' fees listed with him. In holding the surety not liable under the facts stated, we said:

"The sureties of sheriffs are unquestionably responsible for money collected by their principals or deputies on writs of execution or other process upon which they are by law authorized to coerce payment; and in an action against the sureties of the sheriff to pay money collected by him to the person entitled thereto, in order to maintain the action, it is necessary to state such facts as show that the sureties are responsible according to law. If the action is brought against the sureties of a sheriff to make them pay the amount collected by their principal on the fee-bills of a clerk listed with him, it is necessary to aver that the fee-bills were in the hands of the sheriff after the 1st day of May next succeeding the rendering of the services, and within three years after they were distrainable, that they had been in the sheriff's hands over six months, or that he had collected them; and it is not sufficient to allege merely that the fee-bills were distrainable, which is but a legal conclusion.

"The sheriff would be individually liable on his covenant to collect and account for the fee-bills which he acknowledged he had received; but his sureties are not; they can only be made liable for money collected on writs and process which the law makes it his duty to take and collect."

In the case of Catlin v. United States Fidelity & Guaranty Co., 137...