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Ky. Law Rep. 2358; Maraman v. Ohio Wal. Tel. Co., 76 S. W. 398, 25 Ky. Law Rep. 785; McQuillin's Munic. Corp. § 688.

[2] Franchises of this character are of great public interest, in which almost every citizen of the community is directly concerned. The purpose of the statute was to protect that interest, by giving every one an opportunity of knowing what is being done, and to be heard before the franchise is granted. This can only be done by carrying out the statute according to its unmistakable terms. The second invalid ordinance cannot Serve to make Valid the first invalid ordiIlance.

The Ordinance under which the company obtained its franchise is invalid; and the company therefore had no right to plant its pole, guy rod, and guy Wire in the Streets of PikeVille.

The motion to dissolve the injunction is OVerruled.

PEAL et al. V. CAIRO NAT. BANK. (Court of Appeals of Kentucky. Oct. 13, 1915.)

PRINCIPAL AND SURETY 3:23–CONDITIONAL SURETYSHIP-NOTICE TO OBLIGEE. Where a surety signs a note upon condition that others also sign with him, and delivers the note to a third person to deliver to the payee upon obtaining such other signatures, and the other signatures are not obtained, the surety is nevertheless bound if the payee has no notice of the condition, since the surety makes the perSon to whom he so delivers the note his agent for delivery to the payee, and the payee is not bound by any condition not known to him. [Ed. Note.—E'or other cases, see Principal

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Appeal from Circuit Court, Ballard County. Action by the Cairo National Bank against J. S. Peal and another, as Sureties on a note. From a judgment for plaintiff, defendants

appeal. Affirmed.

Eaton & Boyd, of Paducah, for appellant Shelby. J. B. Wickliffe, of Wickliffe, for other appellants. W. A. Anderson, of Wickliffe, for appellee.

MILLER, C. J. On May 20, 1910, John Shded, as principal, with A. M. Shelby, J. S. Peal, and F. S. Saag, as his sureties, executed their note to the Ballard County Bank for $1,200, due in 60 days thereafter. Four days thereafter the Ballard County Bank assigned the note to the Cairo National Bank, for value, and in the usual course of business. When the note matured on July 20, 1910, it was renewed for four months, by the same parties. When the renewal note matured on November 20, 1910, the Cairo National Bank sent it to the Ballard County Bank for collection or renewal.

Shded's store at Bandana, Ky., Was de

stroyed by fire on October 21, 1910, and sub-l

Sequently he was adjudged a bankrupt. Shded's estate paid a dividend of 33% per cent. upon its indebtedness, aggregating $412.20, upon the note in question, leaving a balance of $924.55. The note was not renewed promptly, because the parties were Waiting to ascertain what dividend would be paid thereon by Shded's estate. In the meantime Saag, one of the sureties, had died, and the note was renewed on March 20, 1911, for the balance of $924.55, with Shelby and Peal as his sureties. Upon the maturity of this last renewal note, the Cairo National Bank Sued Peal and Shelby.

The defense of the Sureties is that, when the first renewal note matured, and was renewed on March 20, 1911, the last time, they Signed it With the understanding and agreement with Purdy, cashier of the Ballard County Bank, that the note Was not to be accepted Or delivered to the bank unless Saag, the other Surety, should also sign the note, and that said note was delivered to the appellee in Violation of the agreement.

At the close of all the evidence the court peremptorily instructed the jury to find for the plaintiff; and, from a judgment entered accordingly, Shelby and Peal prosecute this appeal.

It is well settled that a Surety may sign a note conditionally, Which may or may not release him from liability, according to the circumstances of the particular case. Where a Surety Signs a note Or bond. On condition that other sureties shall also sign before the note is to be binding upon him, he is nevertheless bound if the obligee accepts it Without notice Of the COndition. The reaSOn for the rule is that in cases of this character the Surety makes the person to whom he delivers the note conditionally his own agent for the purpose of delivery, and any condition unknown to the payee Will not affect him. The general rule in the last-named class of cases is stated in 32 Cyc. 45, as follows:

“Where sureties sign a bond on condition that others shall also sign it before delivery by their principal to the obligee, it has been held in some cases that they are not bound where no other signatures are procured, although the instrument provides that those who sign shall be liable notwithstanding such a condition, In other cases it has been held, and this seems to be the better rule, that where a surety signs an obligation upon the condition that others are also to sign it, he is bound, although the instrument is delivered in violation of the agreement, if the obligee, accepts it without notice of the condition, either actual or constructive, or those signing it afterward waive such condition; but if the obligee has notice of the condition when he receives the instrument, he cannot hold the surety liable thereon.”

See, also, note in 45 L. R. A. 321.

The last rule above announced prevails in Kentucky. Smith v. Moberly, 10 B. Mon. 266, 52 Am. Dec. 543; Millett v. Parker, 2 Metc. 608; Bivins v. Helsley, 4 Metc. 78; Garvin v. Mobley, 1 Bush, 48; Jackson W. C00per, 19 Ky. Law Rep. 9, 39 S. W. 39; Strader v. Waggoner, 21 Ky. Law Rep. 967, 53 S. W. 663; Barber V. Ruggles, 27 Ky. Law Rep. 1077, 87 S. W. 785. But the proof in this case fails to bring the appellants Within the rule above announced. Peal merely says he did not agree that Saag's name should be left off the note; that he told Purdy he would not renew the note “Without Mr. Saag, unless some one was put on the note that was good”; and that he did not consent to sign the note leaWing . Saag's name Off unless they put SOme other solvent person On it. But he nowhere says Purdy agreed to any such arrangement, or that appellee knew of it; and he further says he knew that Saag was dead. Shelby's testimony is even leSS explicit, Since he teStified he never knew anything about Saag's name having been left off the note. The proof wholly fails to establish any agreement that a new surety should sign in Saag's place, or that there Was any agreement upon the part of Purdy that the note should not be delivered until a new Surety Was procured. - The peremptory instruction was clearly right, and the judgment is affirmed.

32 For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ELSWICK v. RATLIFF, Clerk, et al. (Court of Appeals of Kentucky. Oct. 12, 1915.)

1. ELECTIONS 6:146—CANDIDATES-NOMINA

TIONS—WITHDRAWAL.

While the Primary Act (Ky. St. § 1550

et seq.) requires candidates to state that, if nominated, they will accept the nomination, and not withdraw, yet, in view of the provision for the filling of vacancies occurring after any nomination by death or otherwise, a nominee may create a vacancy by withdrawal.

[Ed. Note.—For other cases, see Elections, Dec. Dig. 3:146.]

2. ELECTIONS @:146-NOMINATION - RESIGNATION. Where a nominee for circuit clerk notified the county clerk in writing that he resigned his nomination, and directed that his name be not printed on the official ballot, he cannot, after the resignation was accepted by the party au, thorities and another candidate selected, then withdraw his resignation and continue to be the nominee, though notice of the resignation was not formally given the party authorities.

[Ed. Note.—For other cases, see Elections, Dec. Dig. 3:146.]

Action by K. B. Elswick against J. E. Ratliff, Clerk, and others, in which an injunction Was granted. Defendants moved to dissolve. Motion granted.

Hazelrigg & Hazelrigg, of Frankfort, and F. T. Hatcher, of Pikeville, for the motion. Willis Staton, of Pikeville, opposed.

TURNER, J. This is a motion before me to dissolve an injunction granted by the judge of the Pike circuit court enjoining the clerk of the Pike County Court from placing the name of S. T. Isom upon the ballot at

the approaching November election as the Democratic nominee for circuit clerk of that county, and adjudging K. B. Elswick to be the Democratic nominee for that office, and directing the clerk of the county court to place his name upon the ballot as such. At the primary election in August, 1915, K. B. Elswick Was nominated for clerk of the Pike circuit court on the Democratic ticket without opposition, and his certificate of nomination was duly issued to him. Thereafter, and on September 11, 1915, in a Writing duly acknowledged by him, he withdrew as the Democratic nominee, and directed the clerk of the Pike county court not to have his name placed on the official ballot at the November election; but on the following day he withdrew this paper and in SOme Way regained possession of it from the clerk, and . it does not appear from the record that the same was ever filed in the clerk's office. Thereafter, and on the 13th day of September, 1915, he again, by writing directed to the clerk of the Pike County Court, duly acknowledged, withdrew as the nominee of the Democratic party and directed the clerk not to place his name On the Official ballot. This writing appears to have been filed in the office on September 13, 1915. On that same day, at a meeting of the Democratic executive committee of Pike county, a Subcommittee which had been appointed by the chairman Of the committee made a report recommending that the said resignation of Elswick be accepted, and this report was unanimously adopted by the Committee. Thereupon George W. Coleman Was nominated by the committee to fill the vacancy caused by the resignation of Elswick, and a certificate of nomination issued to him. Thereafter, and on the 16th day of September, 1915, said Coleman, by writing duly acknowledged by him, resigned Said nomination and directed the clerk not to print his name on the official ballot. On the 25th Of September ElsWick notified the clerk Of the Pike county Court in Writing that he still claimed to be the Democratic nominee for circuit clerk, and undertook to WithdraV and reVOke his former resignation, and Of this action the DemoCratic executive Committee had notice. On the 5th of October, 1915, at another meeting of the County Committee, S. T. Isom was nominated to fill the vacancy caused by the resignation of Coleman, and a certificate of nomination was duly issued to him. This is an action by Elswick seeking a mandatory injunction against the clerk of the Pike county court requiring him to place his name on the ballot as the nominee of the Democratic party for circuit court clerk, and. further seeking to enjoin Isom from claiming to be such nominee. [1] The first contention of the plaintiff is that, as a candidate in the primary is required by statute to state that, if he is nominated

as the candidate of his party, he will accept Such nomination and Will not Withdraw, he therefore cannot withdraw, and that nothing but his death between the primary and the general election Will create a Vacancy. But Such is not the effect to be given to that statute; it was only for the purpose of requiring men Who Sought nominations to be in good faith at the time, and to sincerely represent his party as its candidate at the ensuing election. It Was not contemplated by the statute that a change in a man's situation or conditions between August and November should deprive him of the right to decline to repreSent his party When change of conditions or circumstances in his opinion authorized it. It Was not the purpose to absolutely bind him to be a candidate for an office Which he did not Want, or to fill an office which he had discovered did not suit him, or to act as the representative of his party when in his judgment it Was not best for either. A man might be thought an ideal representative of his party in August, and by reason of unforeSeen occurrences he might be thought a most unfortunate representative in November; or he might very much desire an office in August, When by reason of ill health, sickness in his family, or changed conditions of some kind, he might not want it later. The very provision in the Primary Act itself that When a vacancy occurs after any nomination, by death or otherwise, the governing authority of such party may provide for filling such vacancy and make such nomination, is conclusive that the Legislature had in mind that Vacancies might Occur in nominationS from other causes than death. [2] The only other question necessary to pass upon is Whether ElSWick, after having notified the county clerk in writing that he resigned his nomination, and directing that his name be not printed on the Official ballot, and after this resignation, although not formally made to the party authorities, had come to their knowledge and they had accepted it and nominated another candidate, could then Withdraw it and continue to be the nominee. The case of Saunders V. O'Bannon, 87 S. W. 1105, 27 Ky. Law Rep. 1166, was where a trustee of a graded school district resigned to take effect at a future date, and his resignation Was accepted by the board at the time it was made. Thereafter he undertook before the time his resignation Was to take effect to withdraw the same, and this court, in holding that he did not have the power to Withdraw it after its acceptance, Said: “It is also clear that appellee, O'Bannon, after the 27th of May, was not a legal trustee, for his resignation took effect on that day, which had been legally accented by the board, and after its acceptance he did not have the power to withdraw it, nor did his coappellee and himself have the power to appoint him as trus

tee. Their attempt to do so on the 26th of May was a nullity.

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1. ELECTIONS Q->156 - PRIMARY ELECTION -
TIME FOR FILING CERTIFICATE OF NOMINA-
TION–STATUTE.
Under Primary Election Law (Ky. St.
1915, § 1550, subsec. 26) providing that after
the state board of elections has canvassed the
primary vote they shall issue to the successful
candidate a certificate of nomination, which,
not less than 30 days next before the day on
which the general November election is held,
shall be filed with the secretary of state, where
the Republican nominee for the office of repre-
sentative filed with the secretary of state his
certification of nomination on October 4th, such
certificate was not filed “not less than thirty
days next before” November 2d, the day of the
general election.
[Ed. Note.—For other cases, see Elections,
Cent. Dig. § 129; Dec. Dig. 3:156.]

2. ELECTIONS G-156 – PRIMARY ELECTION TIME FOR FILING CERTIFICATE OF NOMINATION-MANDATORY CHARACTER OF STATUTE. Ky. St. 1915, § 1550, subsec. 26, providing that after the state board of election commissioners have issued to the candidate of each political party receiving the highest number of votes a certificate of nomination, which certificate, not less than 30 days next before the day on which the general November election is held, shall be filed in the office of the secretary of state, is mandatory in character, and failure to comply therewith deprives the nominee of the

2>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

right to have his name printed on the official ballot.

[Ed., Note.—For other cases, see, Elections, Cent. Dig. § 129; Dec. Dig. 8:156.]

Action by S. C. Dobbs against C. F. Crecelius, Secretary of State, and W. C. Allen. Motion by the court to dissolve an injunction. Motion overruled.

O. B. Bertram, of Monticello, for plaintiff. James Garnett, Atty. Gen., for defendant.

TURNER, J. This is a motion made before me by the defendant C. F. Crecelius, secretary of state, to dissolve an injunction prohibiting him from certifying the name of W. C. Allen as Republican nominee in the Thirty-Sixth legislative district of this state, composed of the counties of Clinton and Wayne. In the primary election held on the 7th of August, 1915, S. C. Dobbs was nominated by the Democrats for representative in that district, and W. C. Allen by the Republicans, and they each received their certificates of nomination. On the 28th of September, 1915, Dobbs filed With the secretary of state his certificate of nomination; on the 4th day of October, 1915, Allen filed with the same official his certificate Of nomination. This is an action by Dobbs against the Secretary of state and Allen seeking to enjoin the Secretary of State from certifying to the COunty Clerks Of Clinton and Wayne COunties the name of W. C. Allen as the Republican for that office, and thereby authorizing the said county clerks to have his name printed on the Official ballots to be used at the election on November 2, 1915. Only two questions are presented: (1) Did Allen file his certificate of nomination with the secretary of state within the time preScribed by law? and (2) IS the Statute requiring the Same to be filed not less than 30 days next before the day of the election mandatory, or is it merely directory, and has the Secretary of state the right, after the expiration of the time prescribed by statute, to receive and file in his office a certificate of nomination? [1] The primary election law (section 1550, Carroll’s 1915 Edition Kentucky Statutes, Subsec. 26), after fixing the day upon which the County election COmmissioners Shall meet and canvass the returns, and after providing which returns shall be made to the COunty Clerk and Which returns Shall be made to the secretary of state, then fixes the day upon which the State board Of election commisSioners shall meet at the Capitol and canvaSS the state returns, and further provides:

“And after they have completed the tabulation and canvass of the returns of said primary nominating election they shall immediately certify to the same, and they shall issue to that candidate of each political party receiving the highest number of votes for the office for which he was a candidate, a certificate of nomination, which certificate shall, not less than thirty days next before the day on which the general

November election is held; be filed in the office of the secretary of state.’ By the very terms of this statute the election day cannot be counted as one of the 30 days; the language “not less than thirty days next before the day” of election necesSarily excludes the day itself. To require a thing to be done 30 days before the day of election means that it must be done 30 days before that day begins. It has long been the rule in this state that, Where the time iS to be computed from the act done, then the day on which it is done is to be included as a part of the time; but if it is to be from or after the day itself, the day must be excluded. See Newton V. Ogden, 126 Ky. 101, 102 S. W. 865, 31 Ky. Law Rep. 549, and the authorities there cited. The question in that case Was Whether a local Option election had been held “Within thirty days next preceding or following” a regular election, and the court said: “If the regular election in the meaning of the statute is to be considered as an act done, then the day upon which it was done must be included; on the contrary, if it is to be regarded as a day or date, and not an act, then it must be excluded.” Manifestly the statute in question here requires the filing Of the certificate 30 days before the day of the election, and not merely 30 days before the election. Counting the 4th day of October, there were only 29 days between that and the 2d of November, and it is therefore apparent that Allen's certificate Of nomination Was not filed in time. [2] The remaining question is whether the provision of the statute quoted is mandatory or only directory, and on this question there is little difficulty. In the case of Brodie v. Hook, 135 Ky. 87, 121 S. W. 979, a provision in the statute requiring that a candidate should file his certificate 15 days before the election was held to be mandatory, and that a candidate Who had filed his certificate Within 15 days of the election had no right to have his name printed on the Official ballot. A similar statute was held to be mandatory in Hollon v. Center, 102 Ky. 119, 43 S. W. 174, 19 Ky. Law Rep. 1134. In giving the reason for declaring Such a provision mandatory, this Court, in the case of Brodie V. Hook, supra, said:

“We are of the opinion that the General Assembly enacted this mandatory provision requiring the certificates and petitions of nomination to be filed not less than 15 days before the election, so as to give the clerk that much time to prepare and have the ballots printed and distributed among the polling places in the county before the day of the election, and without being annoyed by litigation by some one attempting to get some name on or off the ballots, and without being importuned by candidates and their friends for that purpose.”

The same reasoning applies to the statute in this case. The Secretary Of State is required 20 days before the election to certify to the County clerks of the 120 counties in the state the names of not only the nominees of all the parties for state offices, but to Certify to them the names Of the candidates for district offices in all districts larger than a county; and it is apparent that it was the legislative purpose to give to the Secretary of State the time intervening between the time certificates of nomination are required to be filed With him and the time he is required to Certify the same to the various county clerks in Which to make accurate the COrrect certificates.

Naturally the court is reluctant to deprive one of the right to have his name printed upon the Official ballot SO that his fellow citizens, if they So desire, may Vote for him; but, the provision of the statute quoted being mandatory, there is no escape from it.

The motion to dissolve the injunction is OVerruled.

Chief Justice MILLER, and Judges CARROLL, HANNAH, and NUNN sat with me in the hearing Of this motion, and concur in this opinion.

EIARRIS et al. V. HOPKINS et al. (Court of Appeals of Kentucky. Oct. 12, 1915.)

1. GUARDIAN AND WARD &a=90—SALE-INVALIDITY-REMEDY. In an action by guardian for the sale of land to secure funds for the education of his minor wards, the petition did not state in the caption of the petition that he was acting as guardian, or allege that the sale was necessary for their “maintenance and education,” but merely for the “education” of the wards. The judgment ordering sale of land did not specifically adjudge that it was necessary to educate and support the infant wards, and the guardian purchased at the sale. Held not to make the judgment and sale thereunder void, but were only errors in the proceedings rendering, it voidable, and until remedied by appeal within one year after removal of disability, as provided by Civ. Code Prac. § 745, or by proceedings to vacate or modify it taken within such year under sections 391, 518, the sale was binding on all parties. [Ed. Note.—For other cases, see Guardian and #". Cent. Dig. §§ 349–355; Dec. Dig. Q:

2. GUARDIAN AND WARD C-107 - SALE OF

WARD’s LAND-COLLATERAL ATTACK.

It is only in cases where there is an entire

want of jurisdiction that a judgment and sale of a minor ward's land can be collaterally attacked.

[Ed. Note.—For other cases, see Guardian and Ward, Cent. Dig. §§ 392, 393; Dec. Dig. Q->107.]

3. GUARDLAN AND WARD Ca105 - SALE OF

WARD'S LAND-RIGHTS OF PURCHASER.

Under the express provision of Civ. Code

Prac. § 391, the setting aside of a judgment for and a voidable sale of land of infant wards, does not affect the title of the guardian as purchaser, or of bona fide purchasers from him.

[Ed. Note.—For other cases, see Guardian and Ward, Cent. Dig. §§ 383–389; Dec. Dig. C+105.]

* Appeal from Circuit Court, Floyd County. Action by F. A. Hopkins against George B. Harris and another, with counterclaim and

cross-petition against plaintiff and his vendees. Judgment for plaintiff and his Vendees, and defendants appeal. Affirmed.

C. B. Wheeler, of Ashland, for appellants. F. A. Hopkins, J. C. Hopkins and James Goble, all of Prestonsburg, for appellees.

NUNN, J. While appellants were infants their land was sold by order of court in an action instituted by Joel C. Martin as their guardian. The purpose of the action was to Secure funds for their education. All the parties were properly before the court, and the land was Within the jurisdiction of the Court. Martin, although plaintiff in the action and guardian for the infants, was purChaSer at the decretal Sale. The Sale Was confirmed and commissioner's deed made to him May 2, 1890. The action was brought under section 489 of the Civil Code, and the bond required in such cases was properly executed, approved, and recorded. Martin sold the land to Hopkins, and Hopkins Subsequently sold portions to the other appellees. In 1908 Hopkins brought this action against appellants, George B. Harris, who was then 27 years of age, and Noah Harris, who was 31 years of age, alleging that they were setting up claim to the land and casting a cloud upon his title, and SOught a judgment quieting his title and enjoining the appellants from making further claim. The appellants filed anSWer, Counterclaim, and CrOSSpetition, whereby they set up title in themSelves and made the Vendees of Hopkins parties to the action. Hopkins and his vendees COntroVerted the affirmative matters In the answer, and also claimed the land by adverse possession for a period of more than 15 years. The court adjudged that Hopkins and his Vendees Were the OWImerS. [1, 2] The real question presented is whether, in the action of Martin against the infants, the judgment and sale thereunder are Void. If it was voidable merely, Or if there was error Only in the proceedings, the remedy for the infants was to appeal from the judgment within one year after removal of disability (Civil Code, § 745), or within that time take steps in the Court rendering the judgment to have it vacated or modified (Civil Code, §§ 391, 518). Appellants insist that the judgment was void because Joel C. Martin did not state in the caption of his petition that he was acting as guardian; that the petition does not allege that the Sale Was necessary for “maintenance and education,” but merely for the “education” of the wards; that the judgment ordered sale of the land, without specifically adjudging that it was necessary in order to educate and support the infants. They contend that the Sale Was Void because their guardian was the purchaser, and that, if not void, he at least held it in trust for them. None of the criticisms directed at the pro

&=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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