Boyd County v. Ross

JUDGE LEWIS DELIVERED THE OPINION OE THE COURT. This is an appeal from a judgment of the circuit court reversing and setting aside an order made September 23, 1889, by the Boyd County Court, directing entered of record, nunc fro tune, the following, alleged to have been made and directed entered of record January 23, 1888, as an order of said county court, viz.: “ L. L. Kibbee, sheriff of Boyd county, this day appeared in open court and, together with G. ~W. Ross and others named, who are approved and accepted by the court, entered into, [170] signed, acknowledged and delivered bond to the Commonwealth of Kentucky, conditioned according to law, for the collection of the county levy of Boyd county for the year 1888, which bond is accepted and approved by the court.” It seems to be conceded no order of court approving and accepting the bond of Kibbee, sheriff', and sureties was entered of record during term of the Boyd County Court, including January 23, 1888; in fact, it appears no such entry was made, from the following recital in the order of September 23, 1889: “The response of Gf. W. Ross and others, sureties of L. L. Kibbee, to rule awarded herein at April term, 1889, of this court, having been considered, together with the records of this court, including the county levy bond of said Kibbee, 23d of January, 1888, the court finds and adjudges, from the recollection and memory of the judge (then and now the court has, of the facts connected with the execution, acknowledgment, delivery and acceptance of said bond), that an order of this court was, on said 23d January, 1888, made and directed to be entered, accepting and approving the bond,” etc. It is no less the right and duty of a county court, under the statute, to pass upon and determine as to sufficiency of sureties in a county levy than in a revenue bond. And it is essential to the validity and force of each that it be not only signed and delivered by sureties, but also accepted and approved by the court. (Commonwealth v. Williams, 14 Bush, 297; Bracken County Commissioners v. Daum, 80 Ky., 388; Commonwealth v. Yarbrough, 84 Ky., 496.) It thus becomes apparent that execution of the bond, though filed and kept by the clerk, affords no evidence of the other essential and independent [171] fact that the sureties were approved and the bond was accepted by the court. So that as there was not at the time •entered of record an order of court approving and accepting the bond, appellees (sureties) can be made liable for default of the sheriff only, if at all, in virtue of the order of September 23, 1889. And as it appears an action had been brought on the bond against them for that cause, they had a direct interest to resist making such order and clear right of appeal therefrom to the circuit court. The only question, then, for us to consider is whether the county court had authority to make and have recorded the order of September 23, 1889. In Conn v. Doyle, 2 Bibb, 248, this court used the following language: “During the term the court has power to alter or amend the record according to truth of the case, but after the. term expires the court ceases to have such power, except in cases of clerical misprision; and even then it is an inviolable rule that no amendment can be made unless there is .something in the record to amend by. This rule is necessary to preserve that sanctity and verity which in contemplation of law the record possesses. Eor if the record could be altered or amended by anything but itself, it would in point of verity be inferior to that by which it is amended.” The general rule thus stated has been repeatedly and uniformly approved and applied by this court. And it has been distinctly held more than once that the mere recollection of the judge of a court of what took place at a former term is not sufficient to authorize an addition to or amendment of the record in regard to any order or judgment. In Lynch v. Reynolds, 6 Bush, 547, is this expression and emphatic language: “ The proposition is [172] to supply the whole by memory of the judge alone of what took place. The accuracy of memory of the judge as to what he states can not be questioned ; but can omissions and failures to enter orders and judgments be thus supplied at a subsequent term? If they can, the records of courts must lose their verity and the rights of citizens depend on varying and fading memories of men. The law forbids such a state of things. This question we regard as settled in Vandever v. Griffith, 2 Met., 425.” It seems to us there could be no better illustration than is afforded by this case of the wisdom of adhering to that rule. The statute in force when the alleged bond was executed required each county judge to ascertain and determine the solvency and sufficiency of county levy bonds; and, in case of approval and acceptances, to make and cause an order showing the fact to be entered of record. It was, besides, his duty to examine the order-book and see the order was duly entered. But, as result of negligence of the county judge of Boyd in failing to have the order accepting the bond entered of record, if it ever was indeed accepted, there was no way to obtain remedy for default of Sheriff Kibbee against his sureties, without such an order as was attempted to be made September 23, 1889. So that the county judge had a personal interest in making that order whereby to render sureties of Kibbee, not so before, then liable, and release himself from possible liability. In our opinion the rule should be strictly applied in this case, and the judgment of the circuit court is therefore affirmed.