69 Cal. 531 | Cal. | 1886
This action was brought to recover of defendant moneys collected and received by him as county recorder as fees. The demurrer of defendant to the complaint was sustained on the ground that the complaint did not state facts sufficient to constitute a cause of action.
The defendant, King, was county clerk; under section 4105, Political Code, he was ex-officio auditor and recorder. An act passed in 1870 had fixed the fees of the recorder. The act of March 21, 1876 (Stats. 1875-76, p. 608), fixed the salary of county clerk at eighteen hundred dollars per annum, and directed him to appoint a deputy county clerk to act as deputy county recorder, whose salary was fixed at nine hundred dollars per annum; provision was made for the appointment of another
We fail to see how there could be any question as to the duty of the defendant. We do not deem it necessary to occupy space in replying to the argument made on his behalf. Can it be a resonable construction of the act of March 21, 1876, that the defendant, as county recorder, was to have deputies to perform the duties of the office, such deputies to be paid by the county, and he (the principal) have the fees of the office for his own use?
As the defendant received the moneys collected by him and held the same in trust for the county, the action is not barred; no demand was made until the day before suit.
The judgment is reversed and the cause is remanded, with directions to overrule the demurrer, the defendant to have leave to answer.
Ross, J., McKinstry, J., Sharpstein, J., Morrison, C. J., and McKee, J., concurred.