Fidelity & Casualty Co. of N.Y. v. Breathitt Co.
| Decision Date | 02 December 1938 |
| Citation | 276 Ky. 173 |
| Parties | Fidelity & Casualty Co. of New York v. Breathitt County et al. |
| Court | United States State Supreme Court — District of Kentucky |
2. Appeal and Error. — Where appellee admitted correctness of certain contentions of appellant, judgment would be reversed in that respect without considering the questions.
3. Appeal and Error. — The Court of Appeals will not disturb the finding of a chancellor, even if his finding appears to be a matter of doubt.
4. Taxation. — In suit by county against former sheriff and his surety to recover money collected as taxes by sheriff, evidence sustained chancellor's findings that sheriff was not entitled to credit for warrants on grounds that he was not the owner and on ground that warrants were not owing by the county, where sheriff, though he stated that he owned the warrants, gave no explanation as to how he obtained them, sheriff's predecessor testified positively that he had owned the warrants and had used them to obtain credit from the county, warrants were shown to have been owned by third persons, and large number of the warrants were traced directly into hands of sheriff's predecessor.
5. Judgment. — Where plaintiff set out and sued for a definite amount in its petition, the judgment, in so far as it permitted recovery in an amount greater than the amount sued for, was erroneous.
6. Taxation. — In suits by county against former sheriff and his surety to recover money collected as taxes by sheriff, evidence sustained chancellor's finding that sheriff had improperly received credit in his settlement for certain sum on land sold for taxes recorded.
7. States. — The commonwealth in a proper state of case is liable for interest on a claim due and owing by it, even though no warrant has been issued.
8. Taxation. — Sheriff had duty to turn over money collected by him from taxpayers and could not purchase county warrants at a discount and deduct the amount thereof from the money collected for taxes.
9. Taxation. — In suits by county against former sheriff and his surety to recover money collected as taxes by sheriff, chancellor did not err in disallowing sheriff a credit for interest on county warrants which had been stamped by the treasurer of the county "no funds," where sheriff had purchased warrants at discount and had deducted amount thereof from money collected for taxes.
10. Taxation. — In suits by county against former sheriff and his surety to recover money collected as taxes by sheriff, chancellor erred in rejecting sheriff's claim for credit for overpayment in county warrants by sheriff in his settlement, notwithstanding that sheriff had been illegally trafficking in warrants, since surety was entitled to use the warrants as a set-off.
11. Taxation. — In suits by county against former sheriff and his surety to recover money collected as taxes by sheriff, chancellor did not err in deducting amount which sheriff, because of mathematical error, had been overcredited for exonerations in his purported settlement with the fiscal court.
12. Taxation. — County was not estopped from suing sheriff's surety on sheriff's purported settlements of tax collections by reason of the fact that the settlements were not recorded as required by statute and not preserved intact by the fiscal court, since it was as much sheriff's duty as it was county's duty to see that settlements were filed and recorded (Ky. Stats., sec. 4146).
13. Taxation. — County was not estopped from suing sheriff's surety on sheriff's purported settlements of tax collections by reason of having accepted payment in full satisfaction of sheriff's liability.
14. Taxation. — In suit by county against sheriff and his surety for balance shown to be due by sheriff's settlement of taxes collected, petition was not demurrable because of the fact that it did not contain allegations recognizing the right of sheriff and his surety to surcharge the settlement, and notwithstanding that it did not allege that the fiscal court had directed the county attorney or some other attorney to bring the suit.
15. Taxation. — Though sheriff's surety might be subrogated to any claim sheriff might have against the county for money expended for building voting houses, surety could not set that claim off in county's suit against sheriff and surety for balance shown to be due by sheriff's settlement of taxes collected.
16. Taxation. — In suit by county against former sheriff and his surety to recover amount shown to be due county by sheriff's settlement of taxes collected, chancellor properly refused to allow sheriff and his sureties credit for interest coupons on county refunding bonds, where the coupons had not been accepted by the fiscal court on the settlement.
17. Taxation. — In suit by county against sheriff and his surety to recover amount shown to be due county by sheriff's settlement of taxes collected, county was not entitled to recover penalties, where petition relied on settlement, since the presumption was that penalties due from the sheriff were included in the settlement.
18. Sheriffs and Constables. — The surety on the sheriff's official bond is not liable for revenue collections of the sheriff when the sheriff has also executed revenue bonds required by law (Ky. Stats., secs. 1884, 4133, 4556).
19. Sheriffs and Constables. — The statute providing that the county court may require the sheriff to give an additional bond or bonds, with good surety, and that the sureties on all bonds executed by the sheriff shall be jointly and severally liable for sheriff's default, does not mean that the sureties on the sheriff's official bonds shall be jointly and severally liable with the surety on the revenue bonds for any default of the sheriff in respect to taxes collected (Ky. Stats., sec. 4134).
20. Principal and Surety. — The surety on revenue bond of sheriff, who had failed to account for and pay over to county all money collected as taxes, was not entitled to contribution from sureties on the sheriff's official bond (Ky. Stats., secs. 1884, 4133, 4134, 4556).
21. Taxation. — In suit by county against sheriff and his surety to recover amount shown to be due county by sheriff's settlement for taxes collected, sheriff and his surety were not entitled to credit for warrants used by sheriff in his settlements with the fiscal court, where the warrants had never been authorized by the fiscal court, there was no order allowing the claims, and there was no way of knowing whether the claims were valid claims against the county.
22. Evidence. — Where claim is properly presented to county fiscal court, the court is presumed to investigate the claim and to allow it if it is proper.
23. Taxation. — Where a large number of unauthorized warrants were presented to county fiscal court after a lapse of several years and allowed en masse as a credit on the sheriff's settlement of taxes collected, it was apparent that no proper consideration could have been given thereto by the fiscal court.
24. Appeal and Error. — On appeal from judgment in suits by county against former sheriff and his surety to recover taxes, interest, and penalties for which sheriff had allegedly failed to account to the county, the Court of Appeals after reversing the judgment in part would not act as auditors and attempt to direct the exact amount for which the judgment should be rendered, but would return the case to the trial court with directions to ascertain the exact amount of the judgment in accordance with the rulings of the Court of Appeals.
Appeal from Breathitt Circuit Court.
O.H. POLLARD and RICHARD PRIEST DIETZMAN for appellants.
GRANNIS BACH, ERVINE TURNER, BRUCE & BULLITT and D.L. STREET for appellees.
Affirming in part and reversing in part.
This is an appeal from a judgment of the Breathitt circuit court in favor of Breathitt county in a suit brought by the county against Lee Combs and his surety, the Fidelity and Casualty Company of New York, to recover taxes, interest and penalties which the county claimed Combs owed by reason of money collected during his term as sheriff and which he had failed to account for and pay over to the county.
Combs qualified as sheriff and began the discharge of his duties on the first Monday in January, 1930. The sureties on his official bond were the appellees, S.L. Combs, Ervine Turner, Lewis Combs, and J.S. Hollon. Later, Combs executed his revenue bond for the year 1930, with appellant as surety, and each year thereafter during his term of office renewed his revenue bond, as required by statute, with appellant as surety. In April, 1931, Combs made his sheriff's settlement with the fiscal court of his tax collections for the year 1930. At the April term 1932, he made a like settlement for the year 1931, and in July, 1933, a like settlement for the fiscal year 1932.
All of the above settlements were approved by the fiscal court, but no one of them was ever filed or recorded in the county clerk's office in accordance with the provisions of Section 4146, Kentucky Statutes; nor were any exceptions filed to any of them.
While we stated above that this was an action, there were really two actions filed, Nos. 2063 and 2122, which were consolidated and tried together.
Action No. 2063 sought to surcharge the three settlements above mentioned. After alleging that Combs, during the years in question, duly filed his settlements for the respective years with the fiscal court, which were accepted and...
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