185 S.W.2d 259 | Ky. Ct. App. | 1945
Reversing.
Fred V. Lucas served as sheriff of Laurel County during the years 1938, 1939, and 1940. The Ohio Casualty Insurance Company was his surety on the county revenue bond in the sum of $35,000 executed on September 14, 1940, for the collection of the 1940 taxes, and J.B. McGowan, W.F. Curry, James H. Lucas, Arthur Reed, Clint McGowan and J.W. Fields were his sureties on the county revenue bonds executed for the collection of the 1938 and 1939 taxes. On February 23, 1943, Laurel County brought an action against Fred V. Lucas and his surety, Ohio Casualty Insurance Company, to recover $3,299.70, with interest thereon from July 1, 1941. It was alleged in the petition that on July 2, 1941, the defendant, Fred V. Lucas, made a settlement with one T.J. Cox who had been appointed commissioner to make the settlement by the Laurel fiscal court, and that the settlement was filed on July 2, 1944, in the office of the clerk of the Laurel county court, and an order was entered approving the settlement. It was further alleged *239 that the settlement was incorrect and false in stating that Fred V. Lucas had paid all balances due Laurel County, and that in truth and in fact on that date he owed to Laurel County the sum of $3,299.70. On March 1, 1943, the county filed an amended petition in which it made the sureties on the 1938 and 1939 bonds defendants and sought to recover $233.40 on the 1939 bond and $664.83 on the 1940 bond. A demurrer to the petition as amended was sustained, and the plaintiff filed what is styled "Second Amended, Substituted and Reformed Petition," in which it set out the facts in more detail. A demurrer to this pleading was sustained and, the plaintiff having declined to plead further, its petition, amended petition, and second amended, substituted and reformed petition were dismissed.
KRS
The record fails to disclose the ground on which the court based its ruling on the demurrer. Counsel for appellees in his brief states that appellant in its petition *240
as amended sought to collect from all of the sureties the alleged shortages extending over the years 1938 to 1940, inclusive, in disregard of the plain provision of the statute that a surety shall not be liable for any act or default of the sheriff occurring in any calendar year other than that in which the bond was executed. Counsel is in error, since the appellant in its petition as amended prayed for a judgment against the Ohio Casualty Insurance Company for only $3,299.70, the amount alleged to have been owing to the county by the sheriff for the year 1940, and against the other sureties for only the amount alleged to be due for the year within which the bond they signed was executed. It is insisted that the demurrer was properly sustained because the petition as amended failed to allege that notice of the alleged defaults of the sheriff had been given to the sureties pursuant to the provisions of KRS
And further along it was said. "Section 4134 of the Kentucky Statutes, in a general clause, gives the county a right of action against the sureties on a sheriff's revenue bond for any default of the sheriff during the year in which the bond may be executed. In a subsequent clause is a proviso for the benefit of the sureties and against the county. The proviso is not in the body of the clause giving the right of action, and therefore, under the foregoing rule, it was not necessary for the county to plead it."
Now that the provision for the benefit of the sureties appears in a separate section of the Statutes, the rule followed in the Atwood case applies with all the more force.
Before the court acted upon the demurrer to the amended petition, the appellees, without waiving their demurrer, filed an answer in which they alleged that the notice required by KRS
The demurrer should have been overruled as to Fred V. Lucas, the sheriff, for another reason. In Russell County Board of Education v. Leach,
The judgment is reversed, with directions to overrule the demurrer.