155 Wis. 286 | Wis. | 1914
In each of these three actions the appellant county,seeks to recover froiU the county treasurer, MacAllis-ter, and the sureties on his official bond. In each the complaint' was demurred to, -the debiurrer sustained, and thereafter judgment entered in favor-of the defendants. In each the complaint, except as to dates, omission of scroll hereinafter mentioned, and names of sureties, is identical. One synopsis of the complaint's is sufficient to show the questions arising in each.
The complaint averred that MacAllister was county treasurer of the appellant, and the other respondents the sureties on his official bond. The town, city, and village treasurers in a given year returned a stated 'amount of taxes delinquent, and the county treasurer in that year collected a stated amount of such taxes with interest and fees, after the delinquent return and prior to the tax sale, and also collected a stated amount' of interest and fees in other cases where the lands were sold at' tax sale. Part but not all of the moneys so collected were paid over by the county treasurer. These averments are. repeated for each year of each term with a difference only in amounts and dates. The remainder due is stated. It' is further averred that while treasurer respondent failed and omitted to make or cause to be countersigned or to file or cause to be filed with the county clerk the duplicate receipts required by sec. 1129, Stats.; that he failed to make entries in his books of account' of the sums so received, but did in fact enter in said books for such receipts a less sum than that received; that he entered in said books a false statement of the actual amount of interest and fees and a false statement of the actual amount' of the face of the tax going to make up the aggregate of the tax certificates carried in his certificate account, thus making it
By stipulation of counsel we arc also to treat thq complaint' as if it contained an allegation to the effect that the treasurer, in receiving before sale a payment of taxes returned delinquent, entered tbe fact and date of such payment on the proper delinquent return opposite tbe tax so returned delinquent and tbe description of land on which such taxes were assessed or tbe name of tbe person paying delinquent personal property taxes, together with a reference by number to tbe duplicate receipt for such payment, also numbered and kept on file in tbe said county treasurer’s office — which duplicate receipt' showed in each case tbe tax collector’s fees, interest charged, and advertising fee if any included in such payment. Tbe complaint avers that MacAllister' entirely
Eor convenience of reference these cases will be numbered 1, 2, and 3. No. 1 covers tbe county treasurer’s term ending on the first Monday of January,. 1891; No. 2 covers the county treasurer’s term ending on the first Monday of January, 1897; and No. 3 such term ending on tbe first Monday in January, 1899.
When the cause of action accrued in No. 1 on the first Monday of January, 1891, the period of limitation was by. see: 4220, R. S. 1878, twenty years. Ch. 268, Laws of 1893, introduced a new limitation applicable to a particular condition after tbe cause of action bad accrued in No. 1. It contained no repealing clause nor anything inconsistent with tbe continuation in force of see. 4220, except as to the special case covered by the ninety-day clause hereinafter referred to. By sec. 4976, R. S/1878, Stats. 1898, and Stats. 1911, this statute of limitation in force when the cause of action accrued must be held “operative to determine all such limitations and periods of time which shall have previously bégun to run.” It does not appear upon the face of the complaint that this action was commenced after the first Monday of January, 1911, hence if the case is covered by
No. 2.
In No. 2 the cause of action accrued prior to the revision of 1898 but after the- enactment of said ch. 268. It therefore falls within the purview of sec. 4976, Stats., and is affected by two limitations, viz.: three years if'there was notice and knowledge, twenty years if there was not. Hence the judgment in No. 2 must also be reversed unless the county had notice and knowledge as- stated in the statute, or \mless the case can be distinguished and brought under the six-years statute of limitations by reason of the fact that no scroll or other representation of a seal appears opposite the names of the signers or in any place upon said instrument. The statute, however, required a bond.-' The instrument is in the form of a bond, contains a penal clause with a de-feasance, and also the following: “Sealed with our seals and dated this 27th day of November, A. I). 1894.” Under sueh circumstances this must be considered a sealed instrument. The mere omission of a scroll or flourish after the
Nos. 1, 2, and 3.
The cause of action in No. 3 accrued after the revision of 1898 went into effect and after causes of action on the official bonds mentioned in sec. 984, Stats. 1898, were express ly excepted from the provisions of sec. 4220, Id., therefore is governed solely by sec. 984, Id. But this statute as it appeared in‘said ch. 268 also affected No. 1 if at the time of its enactment the county had had for three years such notice and knowledge, and No. 2 if after the passage of the said act of 1893 and before the commencement of this action the county had for three, years or more such notice and knowledge.
Appellant’s counsel have cited us to judicial definitions of the word'“knowledge” as distinguished from notice in a contract of suretyship. First Nat. Bank v. U. S. F. & G. Co. 150 Wis. 601, 609, 137 N. W. 742. In a statute relating to supplemental pleadings. Peoples v. Carrol, 11 Heisk. (58 Tenn.) 417. In a contract of suretyship. Fidelity & C. Co. v. Gale City Nat. Bank, 97 Ga. 634, 25 S. E. 392, 33 L. R. A. 821. Under a statute making criminal all receipt' of deposits with knowledge that the bank is unsafe or insolvent. Utley v. Hill, 155 Mo. 232, 55 S. W. 1091. In a statute relating to duties of prosecuting attorney. State v. Ransberger, 106 Mo. 135, 17 S. W. 290. Distinction between knowledge and actual knowledge. Kirkham v. Moore, 30 Ind. App. 549, 65 N. E. 1042. Between knowledge and belief. Ohio Valley C. Co. v. Goble, 28 Ind. App. 362, 62 N. E. 1025. Between the words “knowledge” and “notice.” Clarke v. Ingram, 107 Ga. 565, 33 S. E. 802;
These cases are of little aid in construction. We may look at ch. 268, supra, to aid ns in determining the proper construction of sec. 984, 'supra, for it may be presumed that no very radical change was intended by the revision. Knowledge of a 'fact or condition and “knowledge of the fact that there was a default in some, of the conditions of such bond and that it was damaged because thereof” can easily be differentiated. Knowledge of a sentient person is quite different from knowledge of a municipal corporation. The subject of the legislation, the context, the associated words, and the mischiefs which the particular statute was intended to guard against, as well as the consequences of a particular interpretation, all factots in arriving at correct results, make mere judicial definitions of particular words used in a different connection and with reference to a different subject quite subordinate aids, if any aid, in interpretation.
The respondents cite Black v. Black, 64 Kan. 689, 68 Pac. 662, 667; Lewis v. Duncan, 66 Kan. 306, 71 Pac. 577; Irwin v. Holbrook, 32 Wash. 349, 73 Pac. 360; Board of Comm’rs v. Renshaw, 23 Okla. 56, 99 Pac. 638; Lataillade v. Orena, 91 Cal. 565, 27 Pac. 924; Wood v. Carpenter, 101 U. S. 135; Laird v. Kilbourne, 70 Iowa, 83, 30 N. W. 9; Shelby Co. v. Bragg, 135 Mo. 291, 36 S. W. 600; State v. Yates, 231 Mo. 276, 132 S. W. 672; Mecosta Co. v. Vincent, 65 Mich. 503, 33 N. W. 44. These cases relate to the discovery of fraud under statutes of limitation which provide that the statute shall begin to run at the time of the discovery of the fraud, or which relate -to the concealment of the cause of action and provide that the statute shall begin to run from the time of its discovery or the discovery of the facts constituting the fraud or-the concealment. They throw little light upon the question of construction here involved,
In State v. C. & N. W. R. Co. 132 Wis. 345 (112 N. W. 515), at page 360, this question is considered with reference to an alleged concealment of a cause of action where no statute provided that such concealment should extend the period of limitation. This is a situation quite different from that in the case at bar. There was there no such statute, no false entries, no contrivance upon the part of the defendant to mislead the plaintiff, and nothing to show but that the plaintiff had full opportunity to make an investigation of the business so as to ascertain whether the reports of the defendant were correct. It' has very little bearing upon the question of construction of a statute like that before us.
What follows is relevant to all the cases Nos. 1, 2, and 3. The learned circuit judge stated the question to be, “whether the county is chargeable with knowledge of all that the records showed relative to errors in the treasurer’s account submitted for audit by the county board at the close of his term, although they did not, as a matter of fact, make such examination of books and. vouchers in their possession as to discover existing errors, it not being claimed that actual knowl
“So far as the question is concerned, I do not think that it makes any difference how easy or difficult it may be to ascertain the facts from the books oí documents which it is the duty of the board to examine in.auditing the treasurer’s account. ... If the county officeré, and through them the county, are chargeable with knowledge of anything that an inspection of the books and records would disclose, they are chargeable with everything Jihat such inspection would disclose.” '
We cannot approve of this view of the statute. According to this it would require less to charge one with knowledge than it does to charge one with notice, for the officers would under common law be only chargeable with notice of what an ordinarily diligent investigation would disclose. Knowledge is inore than notice. It may or may not flow from notice, depending sometimes upon the kind of notice, whether actual or constructive, the .extent-of notice, the relationship of the parties, and- the degree of knowledge required by the statute. This construction would in practical effect make the statute operate as a simple three-years limitation, because in all cases such knowledge could be acquired by an expert accountant except where the records and memoranda were out of existence. We are not' certain in this connection what the learned circuit court meant by “books and documents.” If he referred to the duplicate receipts, not countersigned as required by law and not filed with the county clerk as required by law but left in the office of the county treasurer, these were not official documents or records and there was no duty to look for them among the files of- the county treasurer’s office, where they had no legal right to be. If he referred to the return of delinquent taxes required by sec. 1113, Stats., that was a record required by law to be kept, and if duly verified (sec. 1114) was evidence of the amount of taxes re
Under our liberal rules of pleading, lack of knowledge is sufficiently averred in the complaint, and hence it is admitted by demurrer except as to these two matters above mentioned. Ry these the averment of lack of knowledge is not avoided. Under such a complaint the plaintiff may prove a condition of absence of official or proper entries and presence of false and misleading entries sufficient' to establish lack of knowledge on its part, and so surcharge and falsify any account heretofore stated between the county and its treasurer. This applies to amounts alleged to have been collected at the sale as well as to those collected before sale. In the interpretation of said ch. 26.8-and said sec. 984, we must bear in mind that they deal only with causes of action accruing to municipal corporations and only with notice to and with the knowledge of municipal corporations, and relate to actions against' fiduciaries.
The knowledge of a municipal corporation is quite distinguishable from knowledge on the part of a natural person
It follows that tbe judgments in Nos. 1, 2, and 3 must be reversed, and tbe causes remanded for further proceedings according to -law.
By the Court.- — It is so ordered.
A motion for. a rehearing was denied, with- $25 costs, on January 13, 1914.