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Ky. Law Rep. 2358; Maraman v. Ohio Val., sequently he was adjudged a bankrupt. Tel. Co., 76 S. W. 398, 25 Ky. Law Rep. 785; Shded's estate paid a dividend of 3342 per McQuillin's Munic. Corp. § 688.

cent. upon its indebtedness, aggregating [2] Franchises of this character are of $412.20, upon the note in question, leaving great public interest, in which almost every a balance of $924.55. The note was not recitizen of the community is directly concern- newed promptly, because the parties were ed. The purpose of the statute was to pro- waiting to ascertain what dividend would tect that interest, by giving every one an be paid thereon by Shded's estate. In the opportunity of knowing what is being done, meantime Saag, one of the sureties, had died, and to be heard before the franchise is and the note was renewed on March 20, granted. This can only be done by carrying 1911, for the balance of $924.55, with Shelby out the statute according to its unmistakable and Peal as his sureties. Upon the maturity terms. The second invalid ordinance cannot of this last renewal note, the Cairo National serve to make valid the first invalid ordi. Bank sued Peal and Shelby. nance.

The defense of the sureties is that, when The ordinance under which the company the first renewal note matured, and was reobtained its franchise is invalid; and the com- newed on March 20, 1911, the last time, they pany therefore had no right to plant its pole, signed it with the understanding and agreeguy rod, and guy wire in the streets of Pike- ment with Purdy, cashier of the Ballard ville.

County Bank, that the note was not to be The motion to dissolve the injunction is accepted or delivered to the bank unless overruled.

Saag, the other surety, should also sign the note, and that said note was delivered to

the appellee in violation of the agreement. PEAL et al. v. CAIRO NAT. BANK.

At the close of all the evidence the court (Court of Appeals of Kentucky. Oct. 13, 1915.)

peremptorily instructed the jury to find for

the plaintiff; and, from a judgment entered PRINCIPAL AND SURETY On 23—CONDITIONAL SURETYSHIP-NOTICE TO OBLIGEE.

accordingly, Shelby and Peal prosecute this Where a surety signs a note upon condition appeal. that others also sign with him, and delivers the It is well settled that a surety may sign note to a third person to deliver to the payee a note conditionally, which may or may not upon obtaining such other signatures, and the other signatures are not obtained, the surety is release him from liability, according to the nevertheless bound if the payee has no notice circumstances of the particular case. Where of the condition, since the surety makes the per- a surety signs a note or bond on condition son to whom he so delivers the note his agent for delivery to the payee, and the payee is not that other sureties shall also sign before bound by any condition not known to him. the note is to be binding upon him, he is

[Ed. Note.-For other cases, see Principal | nevertheless bound if the obligee accepts it and Surety, Cent. Dig. 8S 45-54; Dec. Dig. Om without notice of the condition. The reason 23.]

for the rule is that in cases of this character Appeal from Circuit Court,

Ballard the surety makes the person to whom he deCounty.

livers the note conditionally his own agent Action by the Cairo National Bank against for the purpose of delivery, and any condiJ. S. Peal and another, as sureties on a note. tion unknown to the payee will not affect From a judgment for plaintiff, defendants him. The general rule in the last-named appeal. Affirmed.

class of cases is stated in 32 Cyc. 45, as Eaton & Boyd, of Paducah, for appellant follows: Shelby. J. B. Wickliffe, of Wickliffe, for

"Where sureties sign a bond on condition

that others shall also sign it before delivery by other appellants. W. A. Anderson, of Wick-their principal to the obligee, it has been held liffe, for appellee.

in some cases that they are not bound where

no other signatures are procured, although the MILLER, C. J. On May 20, 1910, John instrument provides that those who sign shall

On May 20, 1910, John be liable notwithstanding such a condition, In Shded, as principal, with A. M. Shelby, J. S. other cases it has been held, and this seems to Peal, and F. S. Saag, as his sureties, execut- be the better rule, that where a surety signs ed their note to the Ballard County Bank an obligation upon the condition that others

are also to sign it, he is bound, although the infor $1,200, due in 60 days thereafter. Four strument is delivered in violation of the agreedays thereafter the Ballard County Bank ment, if the obligee accepts it without notice assigned the note to the Cairo National of the condition, either actual or constructive,

or those signing it afterward waive such conBank, for value, and in the usual course of dition ; but if the obligee has notice of the conbusiness. When the note matured on July dition when he receives the instrument, he can20, 1910, it was renewed for four months, by not hold the surety liable thereon.” the same parties. When the renewal note See, also, note in 45 L. R. A. 321. matured on November 20, 1910, the Cairo The last rule above announced prevails in National Bank sent it to the Ballard County Kentucky. Smith v. Moberly, 10 B. Mon. 266, Bank for collection or renewal.

52 Am. Dec. 543; Millett v. Parker, 2 Metc. Shded's store at Bandana, Ky., was de- 608; Bivins v. Helsley, 4 Metc. 78; Garvin stroyed by fire on October 21, 1910, and sub-I v. Mobley, 1 Bush, 48; Jackson v. Cooper, Ky.)

ELSWICK V. RATLIFF

11

19 Ky. Law Rep. 9, 39 S. W. 39; Strader v. I the approaching November election as the Waggoner, 21 Ky. Law Rep. 967, 53 S. W. Democratic nominee for circuit clerk of that 663; Barber v. Ruggles, 27 Ky. Law Rep. county, and adjudging K. B. Elswick to be 1077, 87 S. W. 785.

the Democratic nominee for that office, and But the proof in this case fails to bring directing the clerk of the county court to the appellants within the rule above announc- place his name upon the ballot as such. ed. Peal merely says he did not agree At the primary election in August, 1915, that Saag's name should be left off the note; K. B. Elswick was nominated for clerk of that he told Purdy he would not renew the the Pike circuit court on the Democratic ticknote "without Mr. Saag, unless someone et without opposition, and his certificate of was put on the note that was good"; and nomination was duly issued to him. Therethat he did not consent to sign the note leav- after, and on September 11, 1915, in a writing Saag's name off unless they put some ing duly acknowledged by him, he withdrew other solvent person on it. But he nowhere as the Democratic nominee, and directed the says Purdy agreed to any such arrangement, clerk of the Pike county court not to have or that appellee knew of it; and he further his name placed on the official ballot at the says he knew that Saag was dead. Shelby's November election; but on the following day testimony is even less explicit, since he tes- he withdrew this paper and in some way retified he never knew anything about Saag's gained possession of it from the clerk, and name having been left off the note.

it does not appear from the record that the The proof wholly fails to establish any same was ever filed in the clerk's office. agreement that a new surety should sign in Thereafter, and on the 13th day of SeptemSaag's place, or that there was any agree- ber, 1915, he again, by writing directed to ment upon the part of Purdy that the note the clerk of the Pike county court, duly should not be delivered until a new surety acknowledged, withdrew as the nominee of was procured.

the Democratic party and directed the clerk The peremptory instruction was clearly not to place his name on the official ballot. right, and the judgment is affirmed.

This writing appears to have been filed in the office on September 13, 1915. On that same

day, at a meeting of the Democratic execuELSWICK v. RATLIFF, Clerk, et al. tive committee of Pike county, a subcommit(Court of Appeals of Kentucky. Oct. 12, 1915.) tee which had been appointed by the chair1. ELECTIONS Cm146--CANDIDATES-NOMINA- man of the committee made a report recomTIONS—WITHDRAWAL.

mending that the said resignation of Elswick While the Primary Act (Ky. St. § 1550 be accepted, and this report was unanimouset seq.) requires candidates to state that, if ly adopted by the committee. Thereupon nominated, they will accept the nomination, and not withdraw, yet, in view of the provision George W. Coleman was nominated by the for the filling of vacancies occurring after any committee to fill the vacancy caused by the nomination by death or otherwise, a nominee resignation of Elswick, and a certificate of may create a vacancy by withdrawal.

nomination issued to him. Thereafter, and [Ed. Note.-For other cases, see Elections, Dec. Dig. Own146.]

on the 16th day of September, 1915, said 2. ELECTIONS C146 – NOMINATION - RESIG- Coleman, by writing duly acknowledged by NATION.

him, resigned said nomination and directed Where a nominee for circuit clerk notified the clerk not to print his name on the official the county clerk in writing that he resigned his

ballot. On the 25th of September Elswick nomination, and directed that his name be not printed on the official ballot, he cannot, after notified the clerk of the Pike county court the resignation was accepted by the party au in writing that he still claimed to be the thorities and another candidate selected, then Democratic nominee for circuit clerk, and withdraw his resignation and continue to be the undertook to withdraw and revoke his fornominee, though notice of the resignation was undertook to withdraw and revoke his fornot formally given the party authorities.

mer resignation, and of this action the Demo[Ed. Note. For other cases, see Elections, cratic executive committee had notice. On Dec. Dig. Om 146.]

the 5th of October, 1915, at another meeting Action by K. B. Elswick against J. E. Rat- of the county committee, S. T. Isom was liff, Clerk, and others, in which an injunction nominated to fill the vacancy caused by the was granted. Defendants moved to dissolve. nomination was duly issued to him.

resignation of Coleman, and a certificate of Motion granted.

This is an action by Elswick seeking a Hazelrigg & Hazelrigg, of Frankfort, and mandatory injunction against the clerk of F. T. Hatcher, of Pikeville, for the motion. the Pike county court requiring him to place Willis Staton, of Pikeville, opposed.

his name on the ballot as the nominee of the

Democratic party for circuit court clerk, and TURNER, J. This is a motion before me further seeking to enjoin Isom from claimto dissolve an injunction granted by the ing to be such nominee. judge of the Pike circuit court enjoining the [1] The first contention of the plaintiff is clerk of the Pike county court from placing that, as a candidate in the primary is requirthe name of S. T. Isom upon the ballot at ed by statute to state that, if he is nominated as the candidate of his party, he will accept "In the case of Mimmack v. United States, such nomination and will not withdraw, he 97 U. S. 426 [24 L. Ed. 1067] the court, in subtherefore cannot withdraw, and that nothing been presented to the proper authority, and the

stance, said that when a resignation shall have but his death between the primary and the same shall be accepted, whether formally or by general election will create a vacancy. But the appointment of a successor, it is beyond such is not the effect to be given to that stat- recall; it cannot be withdrawn.

"In Am. & Eng. Ency. of Law, p. 424, it is ute; it was only for the purpose of requiring said: 'A contingent or a prospective resignamen who sought nominations to be in good tion, however, can be withdrawn at any time befaith at the time, and to sincerely represent fore it is accepted, and after it is accepted it

seems that it may be withdrawn with the conhis party as its candidate at the ensuing elec- sent of the authority accepting, where no rights tion. It was not contemplated by the statute have intervened.'' that a change in a man's situation or condi

In this case the resignation of Elswick was tions between August and November should unconditional, and fully relinquished his deprive him of the right to decline to repre- right to the nomination, and was to take efsent his party when change of conditions or fect at once. 29 Cyc. 1404, thus states the circumstances in his opinion authorized it.rule: It was not the purpose to absolutely bind "An unconditional resignation which has been him to be a candidate for an office which he transmitted to the authority entitled to receive did not want, or to fill an office which he had it, and a resignation implied from the accept

ance of an incompatible officemay not be discovered did not suit him, or to act as the withdrawn. But a resignation conditional in representative of his party when in his judg- character or to take effect in the future may ment it was not best for either. A man

A man be withdrawn." might be thought an ideal representative of In 16 L, R. A. (N. S.) 1058, there is an inhis party in August, and by reason of unfore-structive note dealing with this question seen occurrences he might be thought a most which shows the decided weight of authority unfortunate representative in November; or to be that an unconditional resignation, when he might very much desire an office in transmitted to the proper authorities and acAugust, when by reason of ill health, sickness cepted, cannot be withdrawn. in his family, or changed conditions of some We are constrained to hold that Isom is kind, he might not want it later. The very the rightful Democratic nominee, and it folprovision in the Primary Act itself that when lows that the injunction was wrongfully a vacancy occurs after any nomination, by granted. death or otherwise, the governing authority

Judges CARROLL, HURT, and NUNN conof such party may provide for filling such sidered this motion with me and concur in vacancy and make such nomination, is con- this opinion. clusive that the Legislature had in mind that vacancies might occur in nominations from other causes than death.

DOBBS v. CRECELIUS et al. [2] The only other question necessary to

(Court of Appeals of Kentucky. Oct. 12, 1915.) pass upon is whether Elswick, after having notified the county clerk in writing that he 1. ELECTIONS Cw156 - PRIMARY ELECTION

TIME FOR FILING CERTIFICATE OF NOMINAresigned his nomination, and directing that

TION-STATUTE. his name be not printed on the official ballot, Under Primary Election Law (Ky. St. and after this resignation, although not form- 1915, $ 1550, subsec. 26) providing that after ally made to the party authorities, had come primary vote they shall issue to the successful

the state board of elections has canvassed the to their knowledge and they had accepted it candidate a certificate of nomination, which, and nominated another candidate, could then not less than 30 days next before the day on withdraw it and continue to be the nominee. which the general November election is held, ,

shall be filed with the secretary of state, where The case of Saunders v. O'Bannon, 87 S. the Republican nominee for the office of repreW. 1105, 27 Ky. Law Rep. 1166, was where asentative filed with the secretary of state his trustee of a graded school district resigned to certification of nomination on October 4th, such

certificate was not filed "not less than thirty take effect at a future date, and his resigna-days next before” November 2d, the day of the tion was accepted by the board at the time general election. it was made. Thereafter he undertook be- [Ed. Note. For other cases, see Elections, fore the time his resignation was to take ef-Cent. Dig. $ 129; Dec. Dig. Om 156.] fect to withdraw the same, and this court, in 2. ELECTIONS Om156 — PRIMARY ELECTION holding that he did not have the power to

TIME FOR FILING CERTIFICATE OF NOMINA

TION-MANDATORY CHARACTER OF STATUTE. withdraw it after its acceptance, said:

Ky. St. 1915, § 1550, subsec. 26, providing "It is also clear that appellee, O'Bannon, that after the state board of election commisafter the 27th of May, was not a legal trustee, sioners have issued to the candidate of each for his resignation took effect on that day, political party receiving the highest number of which had been legally accented by the board, votes a certificate of nomination, which certifiand after its acceptance he did not have the cate, not less than 30 days next before the power to withdraw it, nor did his coappellee and day on which the general November election is žimself have the power to appoint him as trus- held, shall be filed in the office of the secretary tee. Their attempt to do so on the 26th of of state, is mandatory in character, and failure May was a nullity.

to comply therewith deprives the nominee of the Ky.)

DOBBS v. CRECELIUS

13

right to have his name printed on the official | November election is held, be filed in the office ballot.

of the secretary of state." [Ed. Note.-For other cases, see Elections,

By the very terms of this statute the elecCent. Dig. 8 129; Dec. Dig. Om 156.]

tion day cannot be counted as one of the 30 Action by S. C. Dobbs against C. F. Creceli- days; the language "not less than thirty us, Secretary of State, and W. C. Allen. days next before the day" of election necesMotion by the court to dissolve an injunction. sarily excludes the day itself. To require a Motion overruled.

thing to be done 30 days before the day of 0. B. Bertram, of Monticello, for plaintiff. election means that it must be done 30 days James Garnett, Atty. Gen., for defendant.

before that day begins. It has long been the

rule in this state that, where the time is to TURNER, J. This is a motion made before be computed from the act done, then the day me by the defendant C. F. Crecelius, secretary on whích it is done is to be included as a of state, to dissolve an injunction prohibiting part of the time; but if it is to be from or him from certifying the name of W. C. Allen after the day itself, the day must be excludas Republican nominee in the Thirty-Sixth ed. See Newton v. Ogden, 126 Ky. 101, 102 legislative district of this state, composed of S. W. 865, 31 Ky. Law Rep. 549, and the the counties of Clinton and Wayne. In the authorities there cited. The question in that primary election held on the 7th of August, case was whether a local option election had 1915, S. C. Dobbs was nominated by the been held “within thirty days next preceding Democrats for representative in that district, or following” a regular election, and the and W. C. Allen by the Republicans, and court said: they each received their certificates of nomi

“If the regular election in the meaning of nation. On the 28th of September, 1915, then the day upon which it was done must be

the statute is to be considered as an act done, Dobbs filed with the secretary of state his included; on the contrary, if it is to be regardcertificate of nomination; on the 4th day of ed as a day or date, and not an act, then it October, 1915, Allen filed with the same of- ! must be excluded.” ficial his certificate of nomination.

Manifestly the statute in question here reThis is an action by Dobbs against the quires the filing of the certificate 30 days besecretary of state and Allen seeking to en- fore the day of the election, and not merely join the secretary of state from certifying 30 days before the election. Counting the to the county clerks of Clinton and Wayne 4th day of October, there were only 29 days counties the name of W. C. Allen as the Re- between that and the 2d of November, and it publican for that office, and thereby author- is therefore apparent that Allen's certificate izing the said county clerks to have his name of nomination was not filed in time. printed on the official ballots to be used at [2] The remaining question is whether the the election on November 2, 1915.

provision of the statute quoted is mandatory Only two questions are presented : (1) Did or only directory, and on this question there Allen file his certificate of nomination with is little difficulty. In the case of Brodie v. the secretary of state within the time pre- Hook, 135 Ky. 87, 121 S. W. 979, a provision scribed by law? and (2) Is the statute re- in the statute requiring that a candidate quiring the same to be filed not less than 30 should file his certificate 15 days before the days next before the day of the election election was held to be mandatory, and that mandatory, or is it merely directory, and has a candidate who had filed his certificate the secretary of state the right, after the ex- within 15 days of the election had no right piration of the time prescribed by statute, to to have his name printed on the official balreceive and file in his office a certificate of lot. A similar statute was held to be mandanomination ?

tory in Hollon v. Center, 102 Ky. 119, 43 S. [1] The primary election law (section 1550, W. 174, 19 Ky. Law Rep. 1134. Carroll's 1915 Edition Kentucky Statutes,

In giving the reason for declaring such a subsec. 26), after fixing the day upon which provision mandatory, this court, in the case the county election commissioners shall meet of Brodie v. Hook, supra, said: and canvass the returns, and after providing

“We are of the opinion that the General Aswhich returns shall be made to the county sembly enacted this mandatory provision reclerk and which returns shall be made to the quiring the certificates and petitions of nomsecretary of state, then fixes the day upon the election, so as to give the clerk that much

ination to be filed not less than 15 days before which the state board of election commis- time to prepare and have the ballots printed and sioners shall meet at the Capitol and canvass distributed among the polling places in the counthe state returns, and further provides :

ty before the day of the election, and without "And after they have completed the tabula- tempting to get some name on or off the ballots,

being annoyed by litigation by some one attion and canvass of the returns of said primary and without being importuned by candidates nominating election they shall immediately cer and their friends for that purpose.” tify to the same, and they shall issue to that candidate of each political party receiving the The same reasoning applies to the statute highest number of votes for the office for which in this case. The secretary of state is rehe was a candidate, a certificate of nomination, which certificate shall

, not less than thirty quired 20 days before the election to certify days next before the day on which the general) to the county clerks of the 120 counties in the state the names of not only the nominees cross-petition against plaintiff and his venof all the parties for state offices, but to dees. Judgment for plaintiff and his vencertify to them the names of the candidates dees, and defendants appeal. Affirmed. for district offices in all districts larger than

C. B. Wheeler, of Ashland, for appellants. a county; and it is apparent that it was the F. A. Hopkins, J. C. Hopkins and James Golegislative purpose to give to the secretary of ble, all of Prestonsburg, for appellees. state the time intervening between the time certificates of nomination are required to be

NUNN, J. While appellants were infants filed with him and the time he is required to their land was sold by order of court in an certify the same to the various county clerks action instituted by Joel C. Martin as their in which to make accurate the correct cer- guardian. The purpose of the action was to tificates,

secure funds for their education. All the Naturally the court is reluctant to deprive parties were properly before the court, and one of the right to have his name printed the land was within the jurisdiction of the upon the official ballot so that his fellow court. Martin, although plaintiff in the accitizens, if they so desire, may vote for him; tion and guardian for the infants, was purbut, the provision of the statute quoted being chaser at the decretal sale. The sale was mandatory, there is no escape from it.

confirmed and commissioner's deed made to The motion to dissolve the injunction is him May 2, 1890. The action was brought overruled. Chief Justice MILLER, and Judges CAR- under section 489 of the Civil Code, and the

bond required in such cases was properly exROLL, HANNAH, and NUNN sat with me in the hearing of this motion, and concur in the land to Hopkins, and Hopkins subsein the hearing of this motion, and concur in ecuted, approved, and recorded. Martin sold this opinion.

quently sold portions to the other appellees.

In 1908 Hopkins brought this action HARRIS et al. v. HOPKINS et al. against appellants, George B. Harris, who (Court of Appeals of Kentucky. Oct. 12, was then 27 years of age, and Noah Harris, 1915.)

who was 31 years of age, alleging that they 1. GUARDIAN AND WARD Omw90-SALE-IN- were setting up claim to the land and casting VALIDITY-REMEDY.

In an action by guardian for the sale of a cloud upon his title, and sought a judgment land to secure funds for the education of his quieting his title and enjoining the appelminor wards, the petition did not state in the lants from making further claim. The appelcaption of the petition that he was acting as lants filed answer, counterclaim, and crossguardian, or allege that the sale was, necessary petition, whereby they set up title in themfor their “maintenance and education,” but merely for the “education" of the wards. The judg-selves and made the vendees of Hopkins ment ordering sale of land did not specifically parties to the action. Hopkins and his venadjudge that it was necessary to educate and dees controverted the affirmative matters in support the infant wards, and the guardian purchased at the sale. Held not to make the the answer, and also claimed the land by adjudgment and sale thereunder void, but were verse possession for a period of more than only errors in the proceedings rendering, it 15 years. The court adjudged that Hopkins voidable, and until remedied by appeal within one year after removal of disability, as provid- and his vendees were the owners. ed by Civ. Code Prac. $ 745, or by proceedings [1, 2] The real question presented is whethto vacate or modify it taken within such year er, in the action of Martin against the inunder sections 391, 518, the sale was binding fants, the judgment and sale thereunder are on all parties.

[Ed. Note. For other cases, see Guardian and void. If it was voidable merely, or if there Ward, Cent. Dig. 88 349–355 ; Dec. Dig. Om was error only in the proceedings, the rem90.]

edy for the infants was to appeal from the 2. GUARDIAN AND WARD Omw107 - SALE OF ! judgment within one year after removal of WARD'S LAND-COLLATERAL ATTACK.

disability (Civil Code, § 745), or within that It is only in cases where there is an entire want of jurisdiction that a judgment and sale time take steps in the court rendering the of a minor ward's land can be collaterally at- judgment to have it vacated or modified (Civtacked.

il Code, 88 391, 518). Appellants insist that [Ed. Note.-For

other cases, see Guardian the judgment was void because Joel C. Marand Ward, Cent. Dig. 88 392, 393; Dec. Dig. tin did not state in the caption of his petition Om 107.]

that he was acting as guardian; that the 3. GUARDIAN AND WARD 105 SALE OF WARD'S LAND-RIGHTS OF PURCHASER.

petition does not allege that the sale was necUnder the express provision of Civ. Code essary for "maintenance and education,” but Prac. § 391, the setting aside of a judgment merely for the "education" of the wards; that for and a voidable sale of land of infant wards, the judgment ordered sale of the land, withdoes not affect the title of the guardian as pur-out specifically adjudging that it was neceschaser, or of bona fide purchasers from him.

[Ed. Note.-For_other cases, see Guardian sary in order to educate and support the inand Ward, Cent. Dig. 88 383–389; Dec. Dig. fants. They contend that the sale was void Om 105.]

because their guardian was the purchaser, Appeal from Circuit Court, Floyd County, and that, if not void, he at least held it in

Action by F. A. Hopkins against George B. trust for them. Harris and another, with counterclaim and None of the criticisms directed at the pro

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