36 P.2d 327 | Kan. | 1934
The opinion of the court was delivered by
This is an action against a former county treasurer and the surety on her bond. The trial court sustained a demurrer to the petition. Plaintiff has appealed. The principal legal question presented is the application of the statute of limitations.
The petition, filed September 30, 1933, in the name of the state, on the relation of the county attorney, alleged in substance that at
“. . . that if the said Minnie McKay and her deputies shall pay according to law, all money which shall come to her hands as treasurer, and will render a just and true account thereof, whenever required by the law, and shall deliver over to her successors in office, or to any other person authorized by law to receive the same, all moneys, books, papers, and other things appertaining thereto or belonging to her said office, then the above obligation to be void. . . .”
By an amendment to the petition, filed December 23, 1933, it is alleged that certain false entries, statements and reports made by Minnie McKay on various dates, from December 18, 1928, to October 8, 1929, fraudulently concealed the embezzlement and conversion to her own use of the sum of $8,365.81, previously mentioned. The prayer was for judgment against both defendants for $8,365.-81, with interest at six per cent since October 12,1929, and for costs.
Appellant first presents the question whether any statute of limitation can be invoked by defendants, since the bond sued on runs “unto the state of Kansas,” and the action is brought by the state on the relation of the county attorney, in view of the general rule that statutes of limitation do not run against the state unless it is clear it was intended they should do so. (State v. School
Two answers may be made to this question: (1) Here the state is the nominal party only, for the reason that the statute requires the bond to run unto the state of Kansas (R. S. 19-501). An action may be brought on the bond in the name of the state for the benefit of the county and the several taxing districts therein (Comm’rs of Harvey Co. v. Munger, 24 Kan. 205, 208, 209), although the county, or any of the several taxing units therein, might sue for default specifically affecting it (id.). Our statutes relating to state taxes and the obligations and liabilities of counties respecting them, which statutes are collected and commented upon in Clay County Comm’rs v. French, 139 Kan. 815, 817, 33 P. 2d 312, make it clear the state has no real financial interest in the matter. In an action such as this against the county treasurer and the surety on his bond the state acts for the benefit of the county and the taxing districts therein specifically affected by the defalcation of the county treasurer. In determining whether the statutes of limitation are applicable the court will look through the form of the proceeding to the real party in interest (Horton v. Jones, supra; Glathart v. Madden, 122 Kan. 563, 570-573, 253 Pac. 426). (2) The legislature, by statute (R. S. 60-306, fifth clause), has provided a limitation for actions on bonds of this character. This precludes the view that no statute of limitations is applicable. Clearly the legislature intended the appropriate statute of limitations to run on official bonds, even though by statute the state is named as obligee therein.
The next question argued is: What statute of limitations is applicable? R. S. 60-306, fifth clause, provides that an action on an official bond can only be brought within five years after the cause of action shall have accrued. This is the maximum time for bringing such an action. But the action may be barred by some of the other provisions of the statute, for they must be construed together. The bond does not give the cause of action; it simply furnishes security to those who suffer for the wrongs or delicts of the officer, the principal on the bond. It is these wrongs or delicts
(Ryus v. Gruble, 31 Kan. 767, 3 Pac. 518; Comm’rs of Graham Co. v. Van Slyck, 52 Kan. 622, 35 Pac. 299; Davis v. Clark, 58 Kan. 454, 49 Pac. 665; City of Topeka v. Ritchie, 102 Kan. 384, 388, 170 Pac. 1003.)
Now the wrong or delict of the county treasurer, which by the petition is the foundation of this action, was her failure to pay to her successor in office the full amount she should have paid. The petition and its amendment allege inaccuracies in keeping the books and making reports. Whatever these were, and whatever the motive which prompted them, they would not have formed the basis of a civil action against the treasurer or her surety if, notwithstanding them, she had paid over to her successor all that should have been paid. The failure to do this is what hurt, and it is the one wrong or delict of the treasurer which furnishes the basis for this action. The statute (R. S. 19-513) requires the treasurer, upon the termination of his office, to deliver to his successor “all the books and papers belonging to his office, and all moneys in his hands by virtue of his office.” The petition alleges the treasurer failed to perform that duty. The civil liability is one created by statute, and the three-year statute of limitations (R. S. 60-306, last part, second clause) applies.
(Comm’rs of Graham Co. v. Van Slyck, supra; Davis v. Clark, supra; Cloud County v. Hostetler, 6 Kan. App. 286; Hawk v. Sayler, 83 Kan. 775, 112 Pac. 602; Pretzel v. Fiss, 84 Kan. 720, 115 Pac. 536; Donley v. Goll, 132 Kan. 746, 297 Pac. 426.)
Appellant realizes the force of rules of law as stated and applied in the above cases, but contends they do not apply here because of the allegations in the petition of fraud and concealment on the part of the county treasurer, and argues this is an action for relief on the ground of fraud, which may be brought within two years after the fraud is discovered (R. S. 60-306, last portion, third clause). The trouble with this argument is that the action is not one “for relief on the ground of fraud.” As above pointed out, the fraud al
Concealment does not toll the statute of limitations for an action founded on-contract (Railway Co. v. Grain Co., supra; Pickens v. Campbell, 98 Kan. 518, 522, 159 Pac. 21; Rucker v. Hagar, et al., 117 Kan. 76, 79, 230 Pac. 70), nor for an action founded on liability created by statute (City of Coffeyville v. Metcalf, 134 Kan. 361, 5 P. 2d 807). In the case last cited the pertinent syllabus reads:
“Action on a liability created by statute is barred in three years (R. S. 60-306, second), notwithstanding existence of the cause of action is concealed by the person liable.”
See, also, Regier v. Amerada Petroleum Co., 139 Kan. 117, 181-183, 30 P. 2d 136, where many of the cases above cited are reviewed and followed.
Appellant cites and relies largely on Allen v. State, 6 Kan. App. 915, and McMullen v. Loan Association, 64 Kan. 298, 67 Pac. 892. These cases may readily be distinguished from the one before us. In the Allen case it is quite clear from the opinion that all the legal questions involved were not carefully treated, although the conclusion reached may be sustained, in harmony with our opinions,
“In that case a fiduciary relation existed between the parties, McMullen being in fact an agent. . . The relation of trust and confidence placed that case in another class. . .” (p. 592.)
It also is distinguished in City of Coffeyville v. Metcalf, supra, where a syllabus is quoted and some of the facts stated (p. 365) which demonstrated its lack of application to the case then being considered. For similar reasons we regard it inapplicable here.
Our attention is called to the fact that some of our decisions herein cited are not in harmony with some decisions from other states having statutes similar to our own, and it is contended there is lack of harmony in our own decisions. As to this last contention, a careful examination of our cases does not disclose serious lack of harmony. It is not deemed necessary to analyze each of them. The lack of harmony in decisions from other states — some of which accord with our own and others taking a somewhat different view— has been noted in some of our cases previously cited. It is sufficient to say that Ryus v. Gruble, supra, was decided in 1884, and Railway Co. v. Grain Co., supra, in 1904. Both cited earlier cases. So, for more than a generation, county and state officials, attorneys and jurists have known the legal principles controlling this case. Within that time the legislature has met repeatedly, yet it has never enacted that the time for bringing an action on contract, or one on liability created by statute, should be tolled by fraud or concealment. Clearly there has been no general recognition of the need of such a statute.
The judgment of the trial court is affirmed.