Commonwealth, for Use, Etc. v. Clark, Sheriff , 216 Ky. 516 ( 1926 )

Affirming.

The county board of education of Rockcastle county, by the Commonwealth for its use and benefit, filed this ordinary action in the circuit court of that county against D.G. Clark, ex-sheriff of the county, and the sureties in his bond, seeking the recovery of a judgment against defendants for the sum of $1,625.53, composed of the interest and penalties on taxes duly levied on the taxable property of the county for school purposes in the year 1922 ($1,087.71) and for the same items for the same taxes for the year 1923 ($5:37.82), which the petition alleged was due on the school taxes for those respective years which the sheriff did not pay to the board of education until after January 1 following the year in which the collection was or should have been made. The answer was a denial of the averments of the petition, and in a third paragraph it was pleaded that the fiscal court of the county did not, except as hereinafter stated, appoint a commissioner to settle with the defendant as sheriff of the county for the taxes collected by him for various funds, including the school taxes here involved, for the year 1922, and that it made numerous efforts to make such appointment, with a refusal to serve each time by the appointee, until after the first of the year 1924, when one Nicely, the county court clerk of the county, accepted the appointment and made the settlement, and that the same difficulties were experienced in procuring a commissioner to settle defendant's tax collections for the year 1923, and which was not done until after January 1, 1925; that such settlements when made were filed in the county court clerk's office and recorded therein (but which latter fact was not alleged but proven), and that each of the settlements were not confirmed for more than 30 days after they were so made and filed, after which they were each confirmed without exceptions filed thereto. A demurrer filed to that paragraph was overruled with exceptions and it was controverted of record. The cause was then tried before a jury and the court, after the evidence was introduced, sustained defendants' motion for a directed verdict in their favor, which was so returned by the jury, followed by a judgment dismissing the petition, to reverse which plaintiffs prosecute this appeal.

One argument for reversal is that the demurrer to the third paragraph of the answer should have been sustained upon the grounds that, (a), it was not expressly alleged that the settlements pleaded and relied on therein were recorded by the county court clerk after they were filed in his court, and (b), that if such allegation had been made then the paragraph presented no defense to the action, since, as argued, the cause of action to recover the penalties and interests sued for existed independently of any settlement by the sheriff, whose duty it was to pay directly to the county board of education the amounts sued for, monthly, pursuant to an order made for that purpose by it before the taxes were collected, and that it was the duty of the sheriff to make such payments before the first day of January each year, regardless of the orders for monthly payments by the county board. We will consider those arguments in the order named.

Disposing of argument (a), we are not inclined to agree with counsel for plaintiffs (appellants here), since it is our conclusion that the legality of the settlements, if properly made and filed with the proper officer, can not be affected, so far as the sheriff is concerned, by the fact that the county court clerk with whom they were filed did not record them before confirmation and until after the expiration of the time for exceptions to be filed thereto. In fact, we seriously doubt if it was his duty to do so, since the recorded settlement should be the one that is finally found by the court to be the correct one, and the court properly overruled the demurrer based upon this ground.

Argument (b) is also without merit. We have uniformly held in a number of cases where the question was properly presented that if the sheriff makes a valid settlement of the collection and disbursement of his taxes with the proper authority and filed it in the proper office and it is subsequently confirmed without exceptions filed, the remedy of those aggrieved by an error therein is a suit to surcharge the settlement. Some of the many cases so holding are: Bell v. Henshaw, 91 Ky. 430; Turley's Admr. v. Barnes, 103 Ky. 127; Pulaski v. Watson,106 Ky. 500; Little v. Strow, 112 Ky. 527; Fidelity and Deposit Company of Maryland v. Logan County, 119 Ky. 434; Green County v. Howard, 127 Ky. 384; Davis v. Commonwealth, 139 Ky. 334; Commonwealth v. McClure, 20 K. L. R. 1568; Commonwealth v. Pate, 27 K. L. R. 623, and other cases referred to in those opinions. If, however, exceptions were filed to the settlement before its confirmation the remedy of the exceptor would be an appeal from the order overruling or sustaining them, and which practice some or all of the cases supra sustain. Here, we repeat, there were no exceptions filed to settlements made by defendant, Clark, as sheriff of Rockcastle county, and under the doctrine of the cited cases the remedy of plaintiff herein was a suit to surcharge them if they failed to report the proper amount due from him to the county board of education, and in which suit such errors, mistakes and omissions could be pointed out and the settlements corrected so as to conform to the facts, and in the same action recovery could be had for the amounts so omitted. The cases supra, and others following them not only hold that a suit to surcharge the settlement is a proper remedy, but also that it, under the circumstances indicated, is the exclusive one; but always upon the condition that a valid settlement has been made in the manner provided by law. The settlements here involved could have been made by the defendant, the ex-sheriff, who retired from office the first of January, 1926, without the appointment of a commissioner for that purpose, as was held by us in the recent case of Shipp v. Bradley, 210 Ky. 51, and had this action been filed before the settlements were actually made by him the fact that the fiscal court of the county had failed to procure the services of a commissioner to settle with him would not excuse his failure to settle with the fiscal court direct, and in which ease the action would be maintainable. See cases supra, and Commonwealth v. McKay,168 Ky. 58.

But it is insisted that the settlements relied on were in fact no settlements such as the law requires, but we can not agree with that contention. The order of the fiscal court filing them, recites, "T.J. Nicely, commissioner appointed by the fiscal court of Rockcastle county to make settlements with D.G. Clark, sheriff of said county, for the year (the one for which he was appointed) of the various funds of said county, produced and filed settlement herein," and in due time orders of confirmation were made. The copies of the settlements recite by item all of the assessed property within the county upon which the levy was made and the total amount of the taxes calculated on the levy rate for school purposes. The number of polls are then stated, followed by an aggregate amount of the school taxes due the county school board, and then credits the sheriff with his commission and the amount of taxes paid and owing to the treasurer of the school board, thus balancing the items of debit and credit, and then the settlement is signed by the appointed commissioner. It is our conclusion that as thus formulated they fully conformed to the requirements of the law in the making of such settlements and should be treated as such.

Having arrived at the above conclusions, it is unnecessary to determine plaintiff's rights in a proper proceeding to surcharge the settlements, or its right to yet maintain such an action, since it is sufficient for the purposes of this appeal to hold, as we have done, that this independent ordinary action can not be maintained under the facts as presented by the record.

Wherefore, the judgment is affirmed.