Pulaski County v. Watson

• Decision Date: 28 April 1899
• Citation: 50 S.W. 861,106 Ky. 500
• Parties: PULASKI COUNTY v. WATSON, Sheriff, et al. [1]
• Court: Kentucky Court of Appeals

50 S.W. 861

106 Ky. 500

PULASKI COUNTY v. WATSON, Sheriff, et al. ^[1]

Court of Appeals of Kentucky.

April 28, 1899

Appeal from circuit court, Pulaski county.

"To be officially reported."

Action by Pulaski county against John H. Watson, as sheriff, and others, on his bond. Judgment for defendants, and plaintiff appeals. Reversed.

Curd &amp Smith and W. S. Taylor, for appellant.

O. H Waddle and W. A. Morrow, for appellees.

BURNAM J.

This is a suit against John H. Watson and his sureties upon a bond executed in accordance with the provisions of section 4133 of the Kentucky Statutes to recover the amount found to be due the county for county levy as shown by a settlement made with the commissioners of the fiscal court. The petition alleges that Watson was elected sheriff of Pulaski county in November, 1892, and that on the first Monday in January 1893, he took the oath of office, and executed a bond for the faithful discharge of his duties as sheriff, under section 4133; that he collected and settled for the county levy for 1893, the settlement having been duly made with the commissioners appointed by the fiscal court, which was approved and put on record; that in January, 1894, he executed a new bond, under the provisions of section 4133 of the Kentucky Statutes, which was also accepted and approved by the court and recorded; and that thereafter the tax books containing the assessment for the state and county revenues for the year 1894 were delivered to him, and that on the 10th of January, 1895, at a special term of the fiscal court of Pulaski county, he filed a settlement, showing a balance of $9,411.41 due the county, under the provisions of section 4146 of the Kentucky Statutes, which provides: "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 the money due the county or district. The report of such settlement shall be filed in the county court clerk's office, and be subject to exceptions by the sheriff or county attorney, who shall represent the commonwealth and 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 the judgments of the quarterly court," etc.,--and, finally, that "the settlement, when approved, shall be recorded in the county clerk's office." It appears that the provisions of this section were complied with. No appeal was prosecuted therefrom, and, in the absence of any plea of fraud, we are of the opinion that the balance found due upon such settlement is conclusive against the sheriff as to the amount of such indebtedness at that time.

The defendants seek to escape liability on several grounds: (1) It is insisted that no proper levy of the tax sued for was made by the fiscal court of Pulaski county. (2) That the levy was made at a term held in September, 1893, without any previous order of the fiscal court calling the court together at that time. (3) That the defendants are not liable for the county levy for the year 1894 by the terms of the bond sued on. The testimony in the record shows that on the 23d day of September, 1893, the fiscal court of Pulaski county, the county judge and all of the magistrates being present entered an order upon the records of the court by which it was "ordered that the sheriff of Pulaski county, for the year 1894, be and is hereby directed to collect 25 cents on each $100 of the taxable property reported by the assessor for said year, and $1 on each tithable reported by the assessor for said year, and pay same to the county treasurer in accordance with the law for the purpose of paying claims against the county"; the order being signed by the county judge and attested by the county clerk. This order is headed "Pulaski County Court"; and it is insisted because of this designation that it cannot be treated as an order of the fiscal court of the county, and that it is too indefinite to be relied on as the basis of the levy for the purpose intended, and that it was made at a time when neither the court of claims nor the fiscal court had any jurisdiction to act,...