Justices of Lee County v. Fulkerson
| Decision Date | 12 July 1871 |
| Citation | 62 Va. 182 |
| Parties | LEE COUNTY JUSTICES v. FULKERSON. |
| Court | Virginia Supreme Court |
1. When the plaintiff offers no proof of the allegations of his bill, and they are not admitted by the answer, though if proved they would entitle him to an account, the bill should be dlsmissed at the hearing.
2. Upon a motion against a high sheriff for the failure of his deputy to collect and account for the county levies, which went into his hands, of which motion the deputy has notice, it is the duty of the deputy to defend the suit, and show, if he can that he has accounted for them.
3. In such a case, judgment having been rendered against the high sheriff, he is entitled to recover a judgment for the same amount against his deputy; and the deputy cannot show upon such motion against him, that he has paid the levies to the parties entitled.
4. Judgment having been recovered against the deputy, he applies for and obtains an injunction, on the grounds that he had been induced to confess the judgment, upon the agreement of the high sheriff that the account should be settled by persons named, and the execution should only issue for the amount, if any, found due from the deputy; and that in fact nothing was due; and in breach of this agreement, execution had been sued out on the judgment. At the hearing, the injunction is dissolved and the bill dismissed; and this decree is affirmed on appeal. The deputy is estopped from proceeding by bill in equity against the justices of the county, to recover the amount he has paid to the county creditors, above what he has collected from the county levies.
5. The judgment recovered against the high sheriff is by a creditor of the county for money lent; the deputy sustains no such relation to the creditor as will eutitle him to be substituted to the rights of the creditor against the justices of the county, to enforce the payment of so much of the debt as they have not levied for.
6. The deputy sheriff pays the judgments recovered against him in 1847, and he does not institute his suit against the justices of the county until 1858. The statute of limitations is a bar to the claim.
7. QUÆ RE: Whether under any circumstances, the deputy sheriff could maintain a suit against the justices of a county for their failure to lay the levy; and it seems he could not.
This was a suit in equity brought in November 1858, by Jacob V Fulkerson against the justices of Lee county, and was afterwards removed to the Circuit court of Wythe.
The plaintiff in his bill states that by an act of Assembly passed in 1838, the County court of Lee was authorized to borrow money for certain purposes, and that under this act the County court of Lee, in May 1839, borrowed of Col. John Preston four thousand dollars, of which $1,000, with the interest, was to be paid yearly out of the county levy; the last payment falling due in 1843. That for the years 1840 and 1841 Isham Hubbard was the high sheriff, and farmed the shrievalty to the plaintiff and one Claiborne Anderson. That Z. S. Gibson succeeded Hubbard, and he also farmed the shrievalty to the plaintiff and Anderson; but that Gibson died in 1842, and the plaintiff continued to act as deputy until the expiration of the term.
He further states that Preston not having been paid promptly the amount due him, his assignee moved the court for a judgment against Hubbard, the late high sheriff, and the personal representatives of Gibson; for the alleged failures on their part to collect and pay over the levies made in the years 1840-'41 and '42, for the satisfaction of his claim that to these proceedings the plaintiff was not a party; but he distinctly told the parties moved against, that he had as deputy aforesaid, during the years 1840-'41 and '42 collected and paid over all the levies for these years, and was not in arrear. Whether they made defence against said motion he does not know, but judgments were obtained against them for $____ and costs. (The bill is blank as to dates and sums.) That afterwards, Hubbard and Gibson's representatives moved against the plaintiff and Anderson deputies as aforesaid, and their securities, for failures on their part to collect and pay over said levies, and it was proposed by the counsel for the plaintiffs in the motions, that the plaintiff and Anderson should each confess a judgment for the amount of the supposed default, upon condition that the whole subject matter should be referred to two persons named, for examination and settlement; that executions should not issue on said judgments until these gentlemen reported; and that then the executions should issue against the plaintiff and Anderson for whatever amount, if any, that they might be found in arrear; the execution against each party to be for his arrearages. To this the plaintiff objected, alleging that he was not in arrear; but upon being advised by his counsel, that if he accounted for his liabilities he would not be prejudiced by the judgment, and that it would be a speedy mode of settlement, he, in deference to his counsel, waived his objections and let the judgment go. That a day was fixed for going into the settlement, and the plaintiff then and there laid his papers before the referees; but Anderson was not ready, and the settlement was adjourned to a subsequent day, when plaintiff again appeared, but Anderson again procured a continuance. That the referees had proceeded with the settlement so far as to satisfy them that the plaintiff was not in arrear; but because of Anderson's failure to settle they were not then prepared to report; and before the third meeting the administrators of Gibson and Hubbard sued out executions against the plaintiff and Anderson. That the plaintiff and his sureties applied for and obtained injunctions to these judgments; Hubbard and Gibson's administrators answered the bills; and an account was ordered, which was taken by commissioner M. D. B. Lane, and the plaintiff was reported to be in arrear on account of county levies $ ____. To this report the plaintiff filed exceptions; but upon the hearing the court overruled the exceptions, and dismissed the bills. From these decrees, the plaintiff took an appeal to the Supreme court of appeals; and that court affirmed the decree so far as it dismissed the bills as to Hubbard's and Gibson's administrators; but reversed it as to the residue thereof; and sent the causes back with directions to consolidate them and to recommit the report with directions to settle the accounts as between the plaintiff and Anderson. That when the causes went back, they were consolidated and the account was ordered, which was taken by commissioner Crockett; and to it, there were no exceptions. By this report, plaintiff insisted it appeared that at the time of the judgments rendered against him and Anderson, he was in advance to the county upon the said levies $461.17; and that of a levy made in 1844 to cover the deficiencies of the previous levies, he received but $383.71; which still left a balance due him of $77.46. He says in that case the justices of Lee county were not parties and no decree could be made against them, and when it came on to be heard it was stricken from the docket. That he was not a party to the motions against the high sheriffs; and he was prevented by the agreement before stated, from defending the motions against himself. He charges, that he not only has been compelled to pay the debt of Lee county to the amount of $2,788.99; but he had paid another sum of $600 towards the Preston judgment, which had not been allowed to him in Crockett's report. He calls upon the justices to answer; prays that he may be subrogated to the rights of Preston; and that an account may be directed to ascertain his liabilities as deputy sheriff for the county levies aforesaid, and further to ascertain what amount, if any, he has paid to the creditors of said county beyond his liability in the premises; that he may have a decree against the justices of the county of Lee for the amount so overpaid by him, and for general relief.
The plaintiff filed with his bill the decrees of the Court of appeals referred to by him, and the subsequent proceedings in those causes, including Crockett's report; from which it appeared that as between himself and Anderson, the latter was debtor to the plaintiff upon the adjustment of the accounts between them in the sum of $66.86; and on the final hearing of the cause on the 8th of May 1855, there was a decree in his favor for that sum; and the causes were stricken from the docket. It appeared also that Preston's motion against the high sheriff was on the 18th of March 1845; and the decrees of the Court of appeals were on the 26th of July 1853.
The justices of Lee county appeared, and demurred to the bill but the demurrer was overruled; and they then answered. They say that very few of the present justices were justices of the county in any of the years mentioned in the bill, and the defendants are consequently less able to explain and answer so satisfactorily the matters in the bill alleged than the justices in those days would have done; and that as to many of the facts stated in the bill they have no knowledge. They admit the law, the borrowing of the money by the county from Preston, the high sheriffs...
To continue reading
Request your trial