63 P. 257 | Cal. | 1901
Lead Opinion
In the decisions of these causes in Department, the case ofPlacer County v. Dickerson,
We find nothing, therefore, in the cases cited to warrant a change in our views.
The judgments and orders are therefore reserved and the causes remanded, with directions to the court below to sustain the demurrers to the amended complaints as to all causes of action arising more than three years before the commencement of the action. *592
The following are the Department opinions, which are approved and adopted: —
Addendum
Appeal by defendants from a judgment in favor of plaintiff and from an order denying motion for a new trial. The defendant Hall was elected county recorder of the county of Sonoma at the November election, 1890, and on December 1, 1890, he executed his official bond in due form, with the other defendants as sureties. It is alleged that from March 1st to the end of December, 1892, the defandant Hall, in his official capacity, performed official services, and ought to have charged and collected as the legal fees therefor, and did charge and collect as the legal fees therefor," the sum of $1,210.87, for official services, in excess of the amount paid to the county by him; and that the said amount is due the county and remains unpaid. The action was commenced March 20, 1896, — less than four years but more than three years after it became the duty of defendant Hall to collect and pay the said money to the county. The facts are fully stated in the amended complaint, and the defendants demurred thereto upon the ground that it appears upon the face thereof that the alleged cause of action is barred by subdivision 1 of section
The language of subdivision 2 of section
It follows, that, independent of the official bond, the cause of action was barred at the time it was commenced as to defendant Hall. If there had been no bond executed by Hall, and this action had been brought against him alone, there would be no doubt but that it was barred at the time it was commenced. Does the statute apply to the sureties on the written undertaking? or in other words, can the sureties on the official bond plead the statute which has run against the cause of action?
Sureties are never held beyond the strict terms of their contract, and, in general, they have the right to avail *594 themselves of all the defenses that would be allowed by their principal. The object of requiring a bond from a public officer is, that the county or state may be secured from any injury caused by the neglect of duty or dishonest act of the official. Here the bond was security to the county, and given, among other things, for the purpose of indemnifying the county against the loss that it might suffer by the failure of Hall to pay the amount in controversy. The county had the right to look to the bond as security for the amount of all damages caused by the breach thereof, but it also owed a duty to the sureties. It should have brought the action for breach before such action had become barred by the statute. The gist of the action is the failure of Hall to pay the moneys to the county. When he failed to do so he committed a breach of the bond. The defendants, other than Hall, are made defendants for the purpose of securing a judgment against them, in order to collect the amount of damage caused by the breach. The bond is not the cause of action, but collateral thereto, and a means of which the county might avail itself. If the defendant Hall had, instead of giving the bond, given a mortgage upon real estate, properly conditioned, as indemnity for any breach of his official duty, the mortgage would have been an instrument in writing, but it could not be held to give a cause of action to the county after the time had run for commencing an action for the breach. Surely, the sureties cannot be in a worse position than the principal would have been if sued independent of the bond. If defendant Hall could escape liability by reason of the statute, the other defendants are certainly in no worse position. The bond did not impose upon Hall any duties other than or different from those created by the statute. It created no liability upon the sureties, so long as Hall performed his duties as required by the statute. The liability arose only when Hall neglected to make the payment. The bond was collateral security for the liability.
In the case of Paige v. Carroll,
The question arose in Ohio in the early case of State v.Conway, 18 Ohio, 234. The action was against a sheriff and the sureties on his bond. The action against the sheriff for the misfeasance had become barred, but it was claimed that the bond being in writing, the statute as to bringing actions upon written instruments applied. The court, in an able opinion by the chief justice, held that the action was barred as to the sureties. In the opinion it is said: "The actual cause of action is not the execution of the bond — that is more in the nature of collateral security — but the cause of action is the misfeasanse, the false return. Without proof of the false return, there could be no recovery. The action is, in effect, although not so in form, an action against an officer for misfeasance in office. So far as actions of this character are concerned, the limitation acts upon the cause, not the form, of action. And the effect of the statute cannot be evaded by any change in the form of action." This case has been since followed and approved in the same state. (Ohio v.Blake,
In Ryus v. Gruble,
The rule has since been approved by the same court in the later case of Commissioners of Graham County v. Van Slyck,
In the case of Ware v. State,
Respondent's counsel have cited several case of this court which it is claimed support the contention that the period of four years applies to an official bond. We have carefully examined them, and find no case laying down such rule. In some of the cases, expressions are used which in some degree tend to support the contention, but upon examination it will be found that the point was not involved, and the language obiter dictum.
Thus in People v. Burkhart,
The opinion of Mr. Justice Thornton in People v. Van Ness,
In Ventura County v. Clay,
The court only meant that for the purpose of the case the undertaking was a written contract as to its covenants. It did not hold that cause of action was the bond, and not the misfeasance of the treasurer. *598
It follows that the judgment and order should be reversed and the cause remanded, with directions to the court below to sustain the demurrer to the amended complaint.
Haynes, C., and Chipman, C., concurred.
For the reasons given in the foregoing opinion the judgment and order are reversed and the cause remanded, with directions to the court below to sustain the demurrer to the amended complaint. Harrison, J., Garoutte, J., Van Dyke, J.
Addendum
The complaint alleges that the defendant Hall was at the November election, 1892, elected county recorder of the county of Sonoma, and that he afterwards executed his official bond, with the other defendants as sureties; that during his official term, up to and including January, 1895, defendant Hall, in his official capacity, "ought to have charged and collected, and did charge and collect," as legal fees, the sum of $4,613.38 in excess of the amount paid to the county by him, and that he has never since paid the same, and that it is now due and owing to the county. The defendants in their answer pleaded the statute of limitations, alleging that the cause of action was barred by the provisions of subdivision 1 of section
The court evidently proceeded upon the theory that the action was upon the official bond of defendant Hall, and that the action could not become barred until four years after the breach of the bond. In this the court was in error. (County of Sonoma v. Hall, S.F. No. 1529; ante, p. 592.)
Again, the defendants had the right to plead the statutes, or any statute, of limitations as a matter of right, and it was the duty of the court to pass upon the issues thus raised in the consideration of the case. (Bates v. Gregory,
The judgment and order should be reversed.
Haynes, C., and Chipman, C., concurred.
For the reasons given in the foregoing opinion the judgment and order are reversed.
Harrison, J., Garoutte, J., Van Dyke, J.
Beatty, C.J., did not participate in the foregoing.
Rehearing denied.