140 S.W.2d 671 | Ky. Ct. App. | 1940
Affirming in part and reversing in part.
Wolfe County sued Miles Tolson, former jailer, and the sureties on his official bond to recover $750, alleged to have been illegally received by him as compensation. The circuit court sustained a plea of res adjudicata and the county appeals.
In April, 1933, the fiscal court fixed the annual salaries of the several county officers who should be elected in the following November to take office in January, 1934. As a "salary" the sum of $300 was appropriated for "the jailer for heating and lighting the court house." Tolson was elected, and in December, 1933, filed a suit in the circuit court to require the fiscal court to pay him more than $300 a year. In September, 1935, a judgment agreed to by the County Attorney was rendered awarding Tolson recovery of $200 per annum additional for a four-year term "for taking care of the public property and heating and lighting the court *13 house and jail and keeping same clean and in a sanitary condition." That judgment was never set aside and the court held it to be a bar to this action.
If the court rendering a judgment pleaded in bar did not have jurisdiction of the subject matter or the parties to the action, the rule of res adjudicata has no application, for it is an ineffective adjudication. Lewis v. Lewis,
The law raises an implied contract on the part of the jailer to pay back money so unlawfully received. Clark v. Logan County,
The sureties on his bond stand on a different plane. The terms of their bond were that Tolson would faithfully discharge the duties of his office and "pay over to all parties entitled thereto any funds that may come into his hands by virtue of his office as jailer." Fees and compensation collected by an officer illegally, as under a void authority, are not within the contemplation of the bond. Clark v. Logan County, supra; Elliott v. Commonwealth,
The judgment is affirmed in so far as it dismissed the petition against the sureties on the bond and is reversed *14 to the extent that it held the former judgment to be a bar to recovery from the former jailer of the money alleged to have been unlawfully paid him.