58 P.2d 1160 | Kan. | 1936
The opinion of the court was delivered by
This was an action by the city to recover from its secretary of waterworks, and the surety on his bond, money alleged to have been collected by him and not paid to the city treasurer. The trial court sustained defendants’ demurrer to the petition and plaintiff has appealed.
The petition, filed May 12, 1934, and an amended petition filed later, briefly stated, allege that the plaintiff city operates a municipal waterworks plant; that on April 15, 1929, the defendant Hathorn was appointed secretary of waterworks for a term of two years; that his duties are prescribed by statute (R. S. 13-2403 and 13-2408) and are substantially as follows: To keep regular sets of books and waterworks accounts showing in detail the business transactions of his office; to supervise generally the office employees of that department under the direction of the superintendent; to strike a balance at the beginning of each month; to make a complete report to the city’s board of commissioners monthly, showing the transactions-with the departments for the preceding month and the present condition of the department, including a correct account of all collections, appropriations, expenditures and approved claims entitled to pay
The legal question for our determination is what statute of limitations is applicable to the action. It has been held that the civil liability resulting from the failure of an official to perform the statutory duties of his office is a liability created by statute to which the three-year statute of limitations applies (R. S. 60-306, second). (See State, ex rel., v. McKay, 140 Kan. 276, 36 P. 2d 327, and cases there citedpalso, Montgomery County Comm’rs v. McKittrick, 141 Kan. 283, 40 P. 2d 352.) Defendants contend, and the court held, since the term of office within which the derelictions of the official arose for which recovery is sought in this case had terminated more than three years before this action was filed, that it was barred by the statute of limitations.
Recognizing the force of our decisions above cited or referred to, appellant relies largely on Allen v. State, 6 Kan. App. 915, 51 Pac. 572. In the McKay case, supra, we attempted to distinguish this case on the facts. To the extent it cannot be so distinguished it is disapproved as being out of harmony with the other decisions of this court.
The judgment of the trial court is affirmed.