125 Cal. 337 | Cal. | 1899
This is an action brought by the county of Mendocino against J. E. Johnson, formerly its tax collector, and against the sureties upon his official bond, to recover the sum of $3,000, moneys which it is alleged were collected by the tax collector and not accounted for by him in accordance with law. The cause was tried by a jury, which rendered a verdict for plaintiff in the sum of $2,886.80. From the judgment which followed, and from the order denying defendants a new trial, they prosecute these appeals.
The complaint alleged that the defendant Johnson, as tax collector, on and after the first day of October, 1894, and before the seventh day of January, 1895, collected and received the sum of $132,884.69, which he should have paid into the treasury of the county on or before the seventh day of January, 1895, “but that he did not pay prior to the seventh day of January, 1895, and has not since, of the moneys aforesaid, paid into the treasury of said county any other or greater sum than $129,-897.69.
Plaintiff’s case rested mainly upon the testimony of the county treasurer, who said that upon the eighteenth day of December, Mr. Hardy, the deputy tax collector, had demanded of him a receipt for three thousand dollars, which he asserted he had paid into the treasury upon the eleventh day of December preceding, and Handy stated, according to the testimony of the county treasurer: “I came in and you were out of your office. I set it down on the floor. I went out and then went to my office to get more money, and forgot to come back.” He testified fur
1. The treasurer’s examination was carried over the payments made to him by the tax collector in October, November, and December, 1894. He also swore that he had received nothing from the tax collector in the year 1895, up to and including the seventh day of January. Plaintiff, it will be remembered, charged the tax collector with the receipt of the sum of $133,000, and then alleged that of this sum he had not prior to the seventh day of January, and had not since that date, paid in any other or greater amount than the sum of $139,000. The seventh day of January, 1895, was the date of the expiration of the tax collector’s term. It was the date when by law he was required to make his settlement with the auditor and treasurer, but, if he failed to make his settlement upon that date, and did thereafter pay in full all of the moneys due from him to the county, the particular cause of action charged upon here would not lie. It was therefore essential for the plaintiff to aver defendant’s default and failure to pay the money, and it was equally essential to follow the averment by proof,for issue was joined upon this question. But the averment was supported by sufficient evidencewhen it was shown that the tax collector did not pay over all of the
2. When the deputy tax collector was called to -the witness stand by the defendants in.their effort to prove by him that he had actually paid the $3,000 into the treasury, and that the treasurer’s receipt therefor was not secured by fraud or misrepresentation, but was a valid recognition of the payment thus actually made, it was objected upon behalf of the plaintiff that the forms of payment prescribed by the County Government Act of 1891 were not followed, and that therefore the evidence was inadmissible. Those forms are established by section 115 of the County Government Act of 1891 (Stats. 1891, p. 323), and by section 71 of the same act (Stats. 1891, p. 316). It is made the duty of the auditor to examine and settle the accounts of all persons indebted to the county and holding moneys payable into the county treasury, and thereafter, upon -the presentation and filing of the treasurer’s receipt for such money, the auditor shall give to such person his discharge, and charge the treasurer with the amount named in the receipt. The treasurer is forbidden to receive any money into the treasury'unless accompanied by the certificate of the auditor. After discussion the court ruled in the following language: “You want-to show from this witness that he paid $3,000 into that treasury on the eleventh of December, without any authority on the part of the treasurer to receive it. ' The evident object of that provision is to throw a safeguard around the public funds. The objection is sustained to this. I have no doubt about it. I sustain the objection. I sustain the objection unless you say that you expect to follow the testimony up by showing that he has complied with section 115 of the County Government Act; that he first went to the auditor, and that the auditor examined the account, and that he settled it, and that he gave a certificate to the tax collector authorizing him to deposit those three thou
3. The court excluded evidence of four payments aggregating $3,361.23 made by the tax collector to the treasurer, as shown by the treasurer’s receipts. The respondent adopts the decision of the judge in denying the motion for a new trial, and therein it is conceded that the rejected evidence was competent evidence, which should have been admitted; but it is said that defendants were not injured by it, because “plaintiff by amendment would simply charge him with all that he showed was paid in as tax collector over the amount alleged, and credit him accordingly, still leaving the error of $3,000 on the eighteenth to
We think that what has been said renders unnecessary a consideration of other matters urged by appellants; and for the foregoing reasons the judgment and order are reversed and the cause remanded.
McFarland, J., and Temple, J., concurred.
Hearing in Bank denied.
Beatty, C. J., dissented from the order denying a hearing in ■ Bank.