110 Ky. 762 | Ky. Ct. App. | 1901
•Opinion of the court by
Affirming, on original APPEAL AND REVERSING ON CROSS APPEAL OF W. M. COMBS.
H. D. Back, as sheriff of Breathitt county, executed bond for the collection of the State revenue for the year .1882, with W. M. Combs, H. T). Hudson, and Joe Little
Appellants claim that under section 8, c. 104, General Statutes, they are not precluded from making any defense which might have been made to the suit in the name of the Commonwealth. This allegation is denied. The legal presumption is fhat every step necessary to the rendition of the judgment had been properly taken; and, when this fact -was challenged or denied, clearly the burden rested upon appellants to establish their contention that they had no notice of the suit of the State against Back and securities.
The next point relied on is that no demand was made of the personal representatives of decedent before the institution of this suit. The motion of appellants to dismiss appellee’s petition because no demand, accompanied by proper affidavits, was made to the administrator for the payment of the debt sued on before the institution of the suit, was not añade until the second day of March, 1897, several years after the institution of the suit, and after the case had been fully prepared for submission; and the testimony clearly shows the justice of the claim. By joining issue and preparing tihe case on its merits without objection, appellants had waived their right to require a dismissal of the suit at the time the motion was made. It was then only necessary that the affidavit should be made before the entry bf a judgment. See Worthley v. Hammond, 13 Bush, 516; Perry v. Seitz, 2 Duv., 122; Usher v. Flood (Ky.) 17 S. W., 132. (12 Ky. L. R., 722). The necessary affidavit was incorporated in the petition, and the motion to dismiss was properly overruled.
The appellee, W. M. Combs, has prosecuted a cross appeal, and claims that the circuit judge erred in holding