68 Cal. 309 | Cal. | 1885
Lead Opinion
— In the petition for rehearing, the opinion of Department Two, heretofore delivered, is not controverted, in so far as it determines that there was no misjoinder of parties defendant, and that two causes of action were not improperly joined. But it is claimed that the conclusion there arrived at was not sound, in that it declared the sureties of Austin, the tax collector, were responsible for the money received by him, in his official capacity, from Mrs. Lawrence, the plaintiff, and that the statute of limitations did not bar her right of action against them.
In reference to the duties of the tax collector in a matter of this kind, where the action was brought against him alone, this language is used by this court in Randall v. Austin, 46 Cal. 62: “Practically it is a mere deposit of
“When it appeared from the record of the proceedings of the board that the controversy was ended, the unsuccessful party was entitled to withdraw his deposit. If the consent of the board was necessary before he could withdraw the money, the plaintiff in this case obtained it. His petition to that effect was granted, and the clerk was directed to return his papers, including the tax collector’s receipts.
“This was a sufficient authority to the defendant to refund the money, and would have protected him from further responsibility.
“.The rule that voluntary payments cannot be recovered back has no application to the case, nor is there any force in the argument that the action should have been brought against the city and county instead of the tax collector.”
In the case in hand, the demurrer admits that the money was never paid over to the city, and if it was his duty so to do, which we do not now decide, the tax collector, nevertheless, by not paying it over, was responsible to the rightful owner.
Are his sureties on his official bond responsible in this action ?
It is alleged in the complaint, and admitted by the demurrer, that Austin entered upon his duties as tax collector on the 23d of November, 1868; that he executed his bond with the defendants, except the city and county of San Francisco, as sureties on that day, and that the conditions of this bond were for the faithful performance
As we have seen, the law by which the duty of collecting such assessments was imposed upon Austin, as tax collector, was enacted on the 27th of March, 1868.
This was about nine months before he gave his bond with sureties.
As we understand the decision of this court in Randall v. Austin, it declared, inter alla, that the latter’s responsibility to a claimant of such moneys as those now in controversy was as tax collector, and not as an individual.
That being so, such cause of action must necessarily flow from the violation of a duty as such officer, for the due and proper performance of which his sureties have obligated themselves to be responsible. Austin, as tax collector, received the plaintiff’s money, and neither paid it to the city and county treasurer nor to her. It was his duty as tax collector, the city and county having absolved him from all responsibility, to have paid it to the plaintiff on her demand. And it makes' no material difference whether this duty was imposed by the act of 1868, passed before he executed his bond, or under that of 1870, enacted after that occurrence. His sureties undertook to be responsible for the due performance of all such duties as were imposed upon Austin by virtue of his office, whether the same were attached to it, as such, before or after the bond was executed. (People v. Edwards, 9 Cal. 292.)
As to the statute of limitations, we think it very clear that the plaintiff had no right to bring an action for her money until it was judicially determined whether or not
When, in February, 1878, it was thus determined that she had no right to demand of the city a deed to the lands in controversy between her and Ballou, she could then have demanded her money, and her right of action accrued.
The present action was commenced January 14, 1880, and was not barred by the statute of limitations.
We are of opinion that in this action the sureties were liable to the plaintiff, and concur fully in the opinion of Department Two of this court, that the judgment should be reversed and cause remanded, with directions to overrule the demurrer, with leave to answer.
Belcher, C. O., and Searls, C., concurred.
Concurrence Opinion
— For the reasons given in the foregoing opinion, judgment reversed and cause remanded, with direction to overrule the demurrer, with leave to defendants to answer.
The following is the opinion of Department Two above referred to, rendered on the 10th of January, 1885:—
Myrick, J. — This action was brought against the administrator of Austin, deceased, late tax collector of the city and county of San Francisco, and the sureties on his official bond. The defendants (sureties) severally demurred to the amended complaint; the demurrers were sustained, on the ground that the complaint did not state facts sufficient to show a cause of action against said sureties. The facts stated in the complaint are, in substance, that plaintiff, claiming to be the owner of certain outside lands of said city and county, caused the same to be delineated on the “Outside Land Map,” under section 4 of order No. 800, and paid $609 dollars to the
1. The point is presented that there is a misjoinder of parties defendant, in that the administrator of Austin’s estate is joined with the sureties on the official bond of Austin. It has been held in some cases that the representative of a deceased obligor cannot be joined with the co-obligors in an action on a bond, on the ground that one is charged de bonis testatoris, and the other de bonis propriis, and the judgment against the one would be different from that against the other. That reason does not prevail under the practice in this state, as the court is by the code authorized to render such judgment as will give effectual relief. The statute requires that before an administrator can be sued on an obligation arising in the lifetime of the deceased, a claim should be presented; after presentation and disallowance, suit may be brought against the representative as such, but the judgment, as against him, must be that the amount be paid in due course of administration. That does not prevent the rendering of a proper judgment against surviving coobligors.
3. It is claimed that as it was the duty of the tax collector to turn over to the treasurer all moneys lawfully received by him as such (the plaintiff in such case to have recourse upon the city and county treasury), his sureties are not responsible for moneys so received by him but not turned over. As the tax collector received the money in his official capacity (giving his receipt therefor), and did not pay it over, we apprehend that the sureties are not in a position to avail themselves of his failure to pay over. If it was his duty to pay over, his paying over would, of course, relieve his sureties: would his failure to pay also relieve his sureties? We think not.
4. As to the statute of limitations: although plaintiff paid the money to the tax collector in 1870, yet not until February, 1878, was the suit of Lawrence v. Ballou (the suit involving the rights of the respective claimants to the lands) finally disposed of; not until September, 1878, had she leave to withdraw her protest and receipt; and this action was commenced January 14, 1880, clearly within the proper time as to either of those dates. The statute of limitations did not commence to run until plaintiff had a right to have her money, which -was not before February, 1878. If she had sued before that date, she must have gone out of court, as being premature.
Judgment reversed and cause remanded, with directions to overrule the demurrers, with leave to answer.
• Rehearing denied.