Shanks, Auditor v. Northcutt, ex-Sheriff

• Decision Date: 14 February 1928
• Parties: Shanks, Auditor v. Northcutt, Ex-Sheriff.
• Court: United States State Supreme Court — District of Kentucky

223 Ky. 138

Shanks, Auditor v. Northcutt, Ex-Sheriff.

Court of Appeals of Kentucky.

Decided February 14, 1928.

1. Evidence. — In action against ex-sheriff for amount due commonwealth for taxes collected on omitted property, presumption that county clerk performed his duty, under Ky. Stats., sec. 4260, to certify judgments for such taxes to sheriff cannot be indulged to exclusion of proof that certification was not received nor taxes collected.

2. Evidence. — There is a general presumption of law, in the absence of anything to the contrary appearing, that a public officer has performed his official duties.

3. Evidence. — General presumption that public officer has performed his official duties may always be rebutted by actual proof that a duty was not performed.

4. Evidence. — General presumption that duty has been performed by official cannot be used as substitute for proof of definite or material fact, as basis for presuming irregularity in another act by same or different officer, or to supply facts which official record affirmatively shows to be absent.

Appeal from Franklin Circuit Court.

GUY H. BRIGGS for appellant.

M.H. McLEAN for appellees.

OPINION OF THE COURT BY JUDGE WILLIS.

Affirming.

The auditor instituted this action against Homer J. Northcutt, former sheriff of Kenton county, and the sureties on his official bond, to collect $1,544.93 claimed to be due the commonwealth. The petition alleged that the commonwealth, on the relation of a revenue agent, recovered several judgments in the Kenton county court against individuals for taxes on omitted property, which judgments were duly certified to the auditor and to the defendant while sheriff for collection, and that he had collected the same and had failed to settle therefor with the auditor or to pay over to the state the money so collected.

The answer of the defendants denied that any of the judgments were ever certified to the sheriff or collected by him. The commonwealth failed to prove that any of the judgments had been certified to the sheriff for collection or had been collected by him. On the other hand, the sheriff proved that he had not collected any of the judgments, and that none of them had been certified to him. The circuit court dismissed the action, and the commonwealth has prosecuted this appeal.

It is provided, in part, by Kentucky Statutes, sec. 4260:

"If the court shall decide that the property is liable to assessment, and has not been assessed, the clerk of the county court shall enter a judgment on a book kept for that purpose assessing said property and fixing the value thereof, and he shall certify the assessment of said property and its value, together with such other facts as may hereafter be required to appear in said judgment by sec. 6 of this aritcle, to the auditor of public accounts, and likewise to the...