Fidelity & Deposit Co. of Maryland v. Commonwealth

• Decision Date: 26 October 1898
• Citation: 47 S.W. 579,104 Ky. 579
• Parties: FIDELITY & DEPOSIT CO. OF MARYLAND v. COMMONWEALTH. [1]
• Court: Kentucky Court of Appeals

47 S.W. 579

104 Ky. 579

FIDELITY & DEPOSIT CO. OF MARYLAND v. COMMONWEALTH. ^[1]

Court of Appeals of Kentucky.

October 26, 1898

Appeal from circuit court, Bracken county.

"To be officially reported."

Action by commonwealth of Kentucky, for use of Bracken county against the Fidelity & Deposit Company of Maryland, on a sheriff's county levy bond. Judgment for plaintiff, and defendant appeals. Affirmed.

A.M. J Cochran, for appellant.

Thomas H. Hines, for the Commonwealth.

PAYNTER J.

At the November election in 1894, Thomas Sheehy was elected sheriff of Bracken county; and on the first Monday in January, 1895 he took the oath of office and executed the bond required by law. On June 6, 1895, Sheehy, as sheriff and collector of the county levy for the year 1895, executed a bond to faithfully perform his duties as such; and on this bond the appellant Fidelity & Deposit Company of Maryland, was accepted as surety. It appearing that he was indebted to the county on account of his collection of the county levy for the year named, this action was brought on the bond. The appellant seeks to avoid its liability on the bond upon grounds as follows: (1) That the county court was not authorized to accept the bond which Sheehy executed with it as surety; (2) that he was sheriff of the county during the years 1893-94, and defaulted in the payment of certain sums to the county, and as the county judge knew this fact, and failed to notify it, his conduct was a fraud upon its rights, which invalidated the bond.

This bond was executed under section 1884, Ky. St. (Act April 18 1892), which requires a sheriff or other officer who may collect the county levy, before he proceeds to do so, to execute a bond to the commonwealth of Kentucky, in the county court, in a sum equal to double the amount of taxes likely to come into his hands, for a faithful performance of his duty, and to pay over in due time to the proper party, as directed by the court, all moneys collected by him. It appears that some, if not all, of the money for which this action was brought, had been collected previous to the execution of this bond. It was, however, part of the county levy for the year 1895. Under the rulings of this court, previous to the enactment of the statute now in force, probably there could have been no recovery on the bond which the appellant signed as surety. The general assembly seems to have desired to provide against such contingencies; so it incorporated in the revenue law of the state section 4134, Ky. St. (Act Nov. 11, 1892), which reads as follows: "The county court may require the sheriff to give an additional bond or bonds, with good surety, to be approved by the county court, whenever it may deem the interest of the state or county demands; and the sureties on all the bonds executed by the sheriff shall be jointly and severally liable for any default of the sheriff during the term in which said bond may be executed, whether the liability accrued before or after the execution of such bond or bonds." Under this section the county court has the...