Bradford v. McCormick

• Decision Date: 08 March 1887
• Parties: BRADFORD v. MCCORMICK ET AL
• Court: Iowa Supreme Court

32 N.W. 93

71 Iowa 129

BRADFORD v. MCCORMICK ET AL

Supreme Court of Iowa, Des Moines

March 8, 1887

Appeal from Franklin Circuit Court.

THE defendant McCormick was elected and qualified as justice of the peace. The other defendants are sureties on his official bond, on which this action was brought to recover money collected by him as such justice on a judgment upon his docket. The money was received by the justice on the twenty-fourth day of January, 1882, and this action was commenced on the sixth day of July, 1885, and the term of office of the justice expired on the first day of January 1883. The petition states that McCormick "fraudulently concealed the fact from the plaintiff that any amount had been collected on said judgment, and retained said money, and converted the same to his own use, * * * and, by such fraudulent concealment, prevented the plaintiff from obtaining any knowledge of the payment of said money until about the month of February, 1885." The defendant sureties pleaded the statute of limitations. Trial to the court, judgment for the defendants, and the plaintiff appeals.

REVERSED.

Taylor & Evans, for appellant.

Henley & Hemingway, for appellees.

OPINION

SEEVERS, J.

It is insisted by counsel for the appellees that a right of action accrued upon the payment of the money to the justice, and, as more than three years had elapsed when the action was commenced, it is therefore barred under section 2529 of the Code. Counsel for the plaintiff concede that the action is barred under that section, unless it appears that the justice fraudulently concealed from the plaintiff the fact that the money had been received. Counsel for the appellant further concede that the action is not saved by Code, § 2530 but that the rule contended for exists independent of the statute, and it was so held in District Township of Boomer v. French, 40 Iowa 601, in which case the rule is thus stated: "That, when the party against whom a cause of action existed in favor of another, by fraud or actual fraudulent concealment prevented another from obtaining knowledge thereof, the statute would only commence to run from the time the right of action was discovered, or might by the use of due diligence, have been discovered." Many authorities are cited in support of this rule, and it "applies when the cause of action does not grow out of the fraud alleged, but exists independently of it, and is governed by the general statute of limitations." In Findley v. Stewart, 46 Iowa 655, it is also said, by DAY, J., speaking for the court: "Now, while it is true that mere ignorance of their right upon the part of those entitled to the land would not prevent the statute of limitations from running, yet that effect is produced when this ignorance arises through the fraudulent acts of him in whose aid the statute is invoked." It is true,...