Hogg's Adm'R v. Commonwealth
| Decision Date | 08 February 1946 |
| Citation | 301 Ky. 557 |
| Parties | Hogg's Adm'r et al. v. Commonwealth et al. |
| Court | United States State Supreme Court — District of Kentucky |
1. Taxation. — Approval by fiscal court of settlement of sheriff's accounts as tax collector and filing of the settlement in county court, did not obviate the necessity of confirmation of the settlement by county court in accordance with statute requiring that such settlement shall be by county court. KRS 134.310.
2. Taxation. — A settlement of sheriff's account as tax collector with commissioner appointed by fiscal court, which settlement was filed with and approved by fiscal court and filed with county court but never confirmed by county court, was not a legal settlement and was subject to collateral attack. KRS 134.310.
3. Taxation. — Where settlement of account of sheriff as tax collector has been properly made, it may be surcharged, but where it has not been completed in accordance with statute, what was done may be attacked collaterally. KRS 134.310.
4. Taxation. — A settlement of account of sheriff as tax collector properly made and confirmed by county court could be opened up by appeal to circuit court from judgment of confirmation or by independent action instituted to correct the settlement, but it was not subject to collateral attack by common-law action to recover specified amount as taxes collected and not accounted for which was based wholly on former sheriff's promise to pay such amount. KRS 134.310.
5. Taxation. — Circuit court has no jurisdiction to make a settlement with sheriff as tax collector in the first instance, and before jurisdiction of circuit court is invoked to recover taxes allegedly collected by former sheriff and not accounted for, there should be a judgment of the county court, except where sheriff refuses to settle or absconds. KRS 134.310.
6. Taxation. — Where sheriff settled account as tax collector with commissioner appointed by fiscal court and settlement was filed with and approved by fiscal court and filed with county court but never confirmed by county court, common-law action in the name of the commonwealth against administrator of deceased former sheriff's estate to recover taxes allegedly collected and not accounted for could not be maintained in circuit court in absence of judgment of county court. KRS 134.310.
7. Witnesses. — Testimony that deceased former sheriff agreed that amount shown on proposed settlement of his account as tax collector was due is competent as admission against interest in action against administrator of his estate to surcharge settlement of account. KRS 134.310 8. Witnesses. — In order to be disqualified under statute to testify as to transactions with a deceased person on ground of witness' interest, witness must have a present, certain and vested interest so that he would gain or lose directly and immediately thereby and an uncertain, remote, or contingent interest will not disqualify him. Civil Code of Practice sec. 606, subd. 2.
9. Witnesses. — The interest of witnesses as taxpayers in settlement of deceased former sheriff's account as tax collector was too remote and inconsequental to disqualify them under statute to testify in action against administrator of deceased sheriff's estate as to admissions by sheriff that amount shown on proposed settlement was due. KRS 134.310; Civil Code of Practice sec. 606, subd. 2.
10. Evidence. — In action to surcharge settlement of sheriff's account as tax collector, testimony of commissioner appointed by fiscal court to settle account with sheriff as to what commissioner's statement showed instead of what the official records revealed, and without producing the original records, was hearsay and incompetent. KRS 134.310.
11. Taxation. — Commissioner appointed by fiscal court to settle sheriff's account as tax collector could not properly arrive at amount due from sheriff by averaging amounts collected for three years preceding the year for which account was to be settled, though special tax book for the year in question was missing. KRS 134.310.
12. Evidence. — Legal rights are not measured by the law of averages, even where one is unable to prove his cause or establish his defense.
Appeal from Letcher Circuit Court.
French Hawk, Stephen Combs, Jr., and Astor Hogg for appellants.
J.L. Hays for appellees.
Before R. Monroe Fields, Judge.
Reversing.
Doyle Hogg was sheriff of Letcher County for the term ending with 1941, and thereafter continued as special tax collector of the unpaid bills remaining in his possession until June 1, 1942. Section 4135, Kentucky Statutes, now Kentucky Revised Statutes, 134.210. He died January 31, 1943.
On September 22, 1943, this suit was filed as a common-law action in the name of the Commonwealth for the use and benefit of Letcher County and the school districts against Hogg's administrator and sureties on his several bonds, charging that during Hogg's incumbency he had collected $3,174.09 which he had not accounted for, and alleging his promise and agreement to pay that sum. An amended petition stated that of the sum claimed, $951.84 was due on 1940 tax collections, and $2,222.25 on 1941 collections as shown on what is designated as a "settlement made as of January 9, 1943." Demurrers having been overruled, answers were filed denying essential allegations of the petition and pleading proper accounting and settlement. The sureties also pleaded a failure to give notice of any shortage within 90 days after discovery, as it was claimed is required by Section 4134, Kentucky Statutes, now KRS 134.270. Estoppel was pleaded by all the defendants.
After statements of counsel had been made to a jury, the court withdrew the case and transferred it to equity. Evidence was then taken by deposition and judgment rendered for the defendants as to the 1940 item of $951.84, the court being of opinion that as there had been a complete settlement of the sheriff's accounts for that year, the present proceeding is a collateral attack or an attempt to make a supplemental settlement; but if it be not so considered, the evidence was not sufficient to sustain the allegations of the petition. Judgment was rendered for the plaintiff for $1,222.25 on the 1941 claims, the court being of opinion that the evidence was not sufficient to sustain the claim for the balance of $1,000. The defendants appeal from so much of the judgment as is adverse to them, and the Commonwealth has a cross-appeal from the judgment denying the balance of the claim.
A settlement had been made by the sheriff of collections for the year 1940, apparently in accordance with statutory procedure. A commissioner was appointed by the Fiscal Court to make a settlement with the sheriff for 1941 and as special tax collector. KRS 134.310. There was kept in the county court clerk's office special tax books for entry from time to time of omitted assessments discovered during the course of the year. The payments were made to the sheriff. In the preparation of the 1941 statement of accounts, the auditor or commissioner of the Fiscal Court found such a book for 1940, which he testified included collections to the amount of $951.84 not accounted for. This was included in the statement or proposed settlement for 1941. He understood or was advised that one of such special tax books for the year 1941 could not be found. Thereupon he averaged the bills for three previous years as...
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