Kinnison v. Brook's Admr.

4 Ky. Op. 340, 1870 Ky. LEXIS 357

• Court: Court of Appeals of Kentucky
• Decided: January 21, 1870
• Status: Published

Opinion

Opinion op the Court by

Judge Williams:

As heretofore adjudged by this court in the case of Brooks vs. Morrow, manuscript opinion, the order of the County Court releasing the security in the first guardian’s bond from past and future responsibility without taking another bond was a nullity and the taking signatures upon a blank forms or pages was therein decided to be no bond. (See Brooks vs. Morrow, Ky. Opin., vol. 2, p. 202.)

And as the ward had obtained judgment in that suit against sureties that were good and solvent and were severally as well as jointly liable to them they did not see proper to complain of the error and those securities being so severally liable could not complain, therefore, they could not reverse said judgment though this palpable error was committed.

But in this suit by the security or his administrator who paid the liability for contribution, said judgment is no bar because it was not rendered between these parties, hence, the judgment against appellant for a due contribution was both just and legal.

and, the securities of R. F. Samuels, the County Court Clerk who transacted said business so imperfectly, and who are parties to Kinnison’s answer and cross petition has not yet been decided, their demurrer to his cross petition seems to have been overruled but were it not as his cross pleadings are still pending we could not correct any error which is not a final order.

As Kinnison’s right to recover as against the County Judge and the Clerk upon his official bond can only be predicated upon his final responsibility to the wards it was right not to adjudicate the cross petition until this responsibility was ascertained.

Wherefore, the judgment on the petition of Brooks’ administrators herein is affirmed. It is considered by this court that recovery of a pro rata part of the cost by appellee against anuel ‘ lant was equitable and right because be wrongfully escaped from tbe just litigation.

,B. II. Field, for appellant. A. E. Fieldj for appellee.