Green County v. Howard

• Citation: 127 Ky. 379
• Parties: Green County v. Howard
• Decision Date: 02 November 1907
• Court: Court of Appeals of Kentucky

Page 379

127 Ky. 379

Green County v. Howard

Court of Appeals of Kentucky.

November 2, 1907.

Appeal from Green Circuit Court.

I. H. THURMAN, Circuit Judge.

From a judgment sustaining defendant's demurrer to the petition plaintiff appeals — Reversed.

NOGGLE & GRAHAM and W. G. HOWELL for appellant.

JEFF HENRY for appellee.

OPINION OF THE COURT BY JUDGE HOBSON — Reversing.

On January 3, 1898, the office of sheriff in Green County being vacant, A. W. Howard was duly appointed tax collector to collect the county levy for that year. He qualified and gave bond, and entered upon the discharge of his duties. On October 4, 1898, a commissioner was appointed by the fiscal court to settle his accounts. The settlement was made. Exceptions were filed by the county attorney, which were heard by the court. The settlement was corrected approved, and confirmed by the Green county court and properly recorded. On January 29, 1900, Howard was again duly appointed and qualified as tax collector of the county levy for that year, and on October 2, 1900, a commissioner was appointed by the fiscal court to settle his accounts. The settlement was made April 2, 1901, and was approved on May 13, 1901, and ordered to record. This suit was brought on March 3, 1906, to surcharge these settlements. It was alleged in the petition that in the settlement for 1898 Howard was charged with the valuation of the property as fixed by the assessor, but that the state board of equalization had raised the assessment of the property, and that this fact was overlooked in the making of the settlement. In consequence, he was not charged with the full valuation of the property, which made a difference in the taxes of $293.30. It was also charged that, by mistake, he was not charged with the correct number of polls, the difference amounting to $352.50, and that an item of back taxes collected by him had not been charged to him at the correct amount, making in all $629.26, which by mistake was not charged to him in the settlement. It was alleged that this mistake was not discovered until December 13, 1905, and could not have been discovered before by the exercise of reasonable diligence. Similar allegations were made as to the settlement for the year 1900. The defendant demurred to the petition. His demurrer was sustained, and the county appeals.

Section 4146, Ky. St. 1903, is as follows: "Each sheriff shall, when required by the fiscal court, settle his accounts of county or district taxes; and at the regular October term of each year the fiscal court shall appoint some competent person to settle the accounts of the sheriff of money due the county or district. The report of such settlement shall be filed in the county clerk's office, and be subject to exceptions by the sheriff or county attorney, who shall represent the Commonwealth and the county, and the county court shall try and determine such exceptions. An appeal may be prosecuted by either party from the judgment of the county court on such settlement, in the same manner as provided by law for appeals from judgments of the quarterly court, except that the county attorney should not be required to give an appeal bond, or actions may be instituted in any court of competent jurisdiction to correct the settlement; and the settlement, when approved shall be recorded in the county clerk's office." Construing this statute in Little v. Strow, 112 Ky. 531, 23 Ky. Law Rep. 1829, 66 S. W. 283, we said: "Under this statute, nobody can file exceptions to the settlements made by the sheriff except the sheriff or the county attorney; but the statute provides that even if the county attorney shall file such exceptions, and they are heard and determined in the county court, he may appeal from the judgment to the circuit court, or actions may be instituted in any court of competent jurisdiction to correct the settlement by any party in interest." Again in Commonwealth v. Pate, 85 S. W. 1097, 27 Ky. Law Rep. 624, we said: "It is true, as contended for by appellee, the county is barred from maintaining an action to surcharge the settlement after five years from the time when the mistake could have been discovered by the exercise of ordinary diligence; and it may be further conceded as true that, if it appeared in the case that five years had elapsed after the settlement and before this action was instituted, it would be necessary for the plaintiff, if limitation is pleaded, to allege and prove, if controverted, that the mistake could not have been discovered by the exercise of reasonable diligence within five years next before the institution of the action. No action accrued to the county until the settlement was made, and the petition, as amended, does not disclose when it was made." The case of Pulaski Co. v. Watson, 106 Ky. 500, 50 S. W. 861, 21 Ky. Law Rep. 61, and Fidelity & Deposit Co. of Maryland v. Logan Co., 119 Ky. 428, 84 S. W. 341, 27 Ky....