Springer v. County of Clay, 35 Iowa 241

Springer v. County of Clay

35 Iowa 241 | Iowa | 1872

Cole, J.

I. As to defendant’s a/ppeal. This relates to the overruling of the demurrer to the first four counts. When a pleading shows affirmatively that its cause of claim is barred by the statute of limitations, it may be *243assailed, by demurrer. Rev., § 2961. Actions founded on written contracts must be brought within ten years. § 2740, subd. 4.- But it was also provided, that such limitación shall not apply “ if from the answer of the defendant or from his testimony as a witness it affirmatively appears that the cause of action still justly subsists.” § 2742. This section, however, was repealed by section 35, chapter 167, Laws of 1870, which took effect before this action was commenced. Since, therefore, it affirmatively appears from the petition that the causes of claim set out in the first four counts thereof were barred by the statute of limitations, and that the right to show the facts alleged, in order to avoid the bar, does not now exist, the statute whereon the same was based having been repealed, the court erred in overruling the demurrer to the said four counts.

II. As to plaintiff’s appeal. This relates to the seal. “Each county * * * is a body corporate for civil and political purposes; * * * shall, keep a seal such as provided by law, ***** the inscription on which shall be “ Seal of the County-, Iowa ” (naming the county) in capital letters, and each new seal hereafter obtained shall be of the same description” * * * Rev., §§ 221-2 “ It is the duty of the treasurer to receive all money payable to the county and to disburse the same on warrants drawn and signed by the clerk of the board of supervisors, and sealed with the county seal and not otherwise '* * *.” § 360. Our statute having thus expressly and imperatively declared what the seal of the county affixed to the, warrants shall Toe, and prohibited the payment of money upon any other, it was not competent for the county officers, by usage or otherwise, to change the statute or to give effect to an instrument which the statute, in effect, declares invalid, by directing that money shall not be disbursed upon it. Prescott v. Gonser, 34 Iowa, 175. The county may be liable on the indebtedness for which the warrants were issued, but not on the warrants as such. *244The court, did not err in sustaining the demurrer. On plaintiff’s appeal the judgment is affirmed. On defendant’s it is

Reversed.