County of Ada v. Ellis

• Decision Date: 22 May 1897
• Parties: COUNTY OF ADA v. ELLIS
• Court: Idaho Supreme Court

48 P. 1071

5 Idaho 333

COUNTY OF ADA v. ELLIS

Supreme Court of Idaho

May 22, 1897

OFFICIAL BOND-LIABILITY OF SURETIES-STATUTE OF LIMITATIONS.-The liability of sureties on an official bond is a statutory liability, and action upon such liability is barred in three years.

SAME-CIVIL PROCEDURE.-Where the official bond of a collector obligated him to "well, truly and faithfully perform and discharge all the duties required of him by law as collector aforesaid and shall pay over to the proper authority all money that shall come into his hands as collector, in pursuance of the statutes in such case made and provided," an action will not lie against the sureties of such officer to recover money wrongfully and illegally paid to him by the board of commissioners after the expiration of his term of office, the receipt of such money by the collector not being an official act for which the sureties are responsible.

(Syllabus by the court.)

APPEAL from District Court, Ada County.

Affirmed with costs.

Hawley & Puckett, for Appellant.

The first proposition raised by the answer, although not urged upon the trial, is that this action is barred by section 4054, subdivision 1, of the Revised Statutes of the state of Idaho which provides: "That an action upon a liability created by statute is barred within three years." It is a universal and a well-established rule that a statute of limitation must be strictly construed. (Tynan v Walker, 35 Cal. 634, 95 Am. Dec. 152.) The section of our statute above cited refers to liability created by statute. The liability in this case and upon which this action is brought is not a statutory liability, but is a liability created and positively fixed by our constitution and is upon an instrument in writing. (Idaho Const., art. 18 secs. 7, 8; Placer Co. v. Dickerson, 45 Cal. 12; Victor Silver Min. Co. v. Crockwell, 3 Utah 152, 1 P. 470, 1 West Coast Rep. 428. It follows, then, that if the statute of limitations runs at all against this claim, which we greatly doubt, it is governed by the provisions of section 4052 and would run five years. The next question that arises in this case is as to the conclusiveness of a judgment against the principal as against the sureties. It is admitted in this case that the proceedings and allegations in regard to the suit, judgment, etc., set up in the complaint herein are true, but defendants contend that the judgment is not admissible as against the sureties. We contend not only that the judgment is admissible but is prima facie evidence as against these defendants. (Stephens v. Shafer, 48 Wis. 54, 3 N.W. 835, 33 Am. Rep. 793, and numerous cases therein cited.) The great weight of authority bears us out in our contention that each of the bondsmen are individually liable for the entire and full amount. They cannot take advantage of their failure to qualify in the full amount of the bond to defeat not only the object and purpose of the bond, but the intention of the sureties themselves at the time of the execution of the bond. (Tevis v. Randall, 6 Cal. 632, 65 Am. Dec. 547; People v. Edwards, 9 Cal. 286; People v. Huson, 78 Cal. 154, 20 P. 369; Kincannon v. Carroll, 9 Yerg. 11, 30 Am. Dec. 391; People v. Edwards, 29 Cal. 429.) But regardless of the fact that the great weight of authority bears out in our contention, we think the proposition has been settled beyond question by our statute and a decision of our own supreme court. (Idaho Rev. Stats., sec. 405; People v. Slocum, 1 Idaho 62.)

Johnson & Johnson, W. E. Borah, and Brown & Cahalan, for Respondents.

The first question presented by the demurrer to the answer is that the present action is barred by the statute of limitations. We contend that this is a liability arising under the statute and is controlled by subdivision 1, section 4054, which reads as follows: "Within three years an action upon a liability created by statute other than a penalty or forfeiture." The principle for which we contend is that the cause of action here is based upon the proposition that if Thomas B. Gess had secured certain money while he was in office, it was his duty to pay back the money, and that this was a duty or an obligation arising under and by reason of the provisions of the law. The bond is but the guaranty; it does not give rise to the cause of action, nor does it extend the time in which an action may be brought. It is simply a guaranty for the liability when it does arise and so long as it exists. (Board v. Van Slyck, 52 Kan. 622, 35 P. 299; Ryus v. Gruble, 31 Kan. 767, 3 P. 518.) The statute of limitation is as applicable to actions like the one at bar brought by the state as to those brought by private persons; and public officers and their bondsmen cannot be harassed by suits brought after the statutory period of limitation has expired. (People v. Van Ness, 76 Cal. 121, 18 P. 139; Spencer v. Perry, 18 Mich. 394.) The test as to whether the liability is one created by statute is said to be whether, independent of the statute, the law imposes an obligation to do that which the statute requires to be done, and whether, independent of the statute, the right of action exists for a breach of the duty or obligation imposed by the state. (Wood on Limitations of Actions, sec. 39; State v. Baker County, 24 Or. 146, 33 P. 530.) The moneys sued for were not received by said Thomas B. Gess in his official capacity, or as money which by law he was permitted to receive, but were voluntarily paid to him after he had fully accounted for and paid over the moneys received by him as assessor and tax collector. In the action against the principal it was expressly held that Mr. Gess was paid the money in violation of the statute or constitution, and that the money was not received or paid over to him in accordance with the statute, and that this money did not come into his hands in pursuance of the statute or law. (Ada County v. Gess, 4 Idaho 611, 43 P. 71.) The engagement or obligation of the sureties cannot be extended beyond the strict terms of the bond. (Orman v. City of Pueblo, 8 Colo. 292, 6 P. 931; Taylor v. Parker, 43 Wis. 78; Miller v. Stewart, 9 Wheat. 680; United States v. Boyd, 15 Pet. 187.) The breach must be predicated upon some official misconduct. (Orman v. City of Pueblo, 8 Colo. 292, 6 P. 931; Ward v. Stahl, 81 N.Y. 403; Brandt on Suretyship and Guaranty, sec. 528; State v. Anthony, 30 Mo.App. 638; People v. Pennock, 60 N.Y. 625, 626.) In matters of official bonds a judgment against the principal is in no way evidence against the sureties. Where sureties agree in general terms that an officer will faithfuly perform his duty, they are entitled to be heard and have their day in court, and any judgment rendered against a principal in an action to which they were not parties is not even evidence against them. (Pico v. Webster, 14 Cal. 202, 73 Am. Dec. 647; Rodini v. Lytle, 17 Mont. 448, 43 P. 502; Irwin v. Backus, 25 Cal. 223, 85 Am. Dec. 125; Douglas v. Howland, 24 Wend. 35; Carmichael v. Governor, 3 How. (Miss.) 236; Lucas v. Governor, 6 Ala. 826; Jackson v. Griswold, 4 Hill, 522; Thomas v. Hubbell, 15 N.Y. 405, 69 Am. Dec. 619; Lartigue v. Balduin, 5 Mart. (La.) 193; Moss v. McCullough, 5 Hill (N. Y.), 131; Brandt on Suretyship and Guaranty, secs. 630, 636; Karmack v. Commonwealth, 5 Binn. 184; Pioneer Sav. etc. Co. v. Bartsch, 51 Minn. 474, 38 Am. St. Rep. 511, 53 N.W. 764; Governor v. Shelby, 2 Blackf. 26.)

HUSTON, J. Sullivan, C. J., and Quarles, J., concur.

OPINION

HUSTON, J.

At the general election held in and for the county of Ada, on the 1st of October, 1890, one Thomas B. Gess was duly and regularly elected to the office of assessor and ex-officio tax collector for Ada county, state of Idaho for the two years next following from January 1, 1891. On the tenth day of November, 1890, said Thomas B. Gess executed and filed his official bond as such officer in the proper office in the said county, with the defendants, George D. Ellis, George W. Gess and Ferdinand Dangle, as sureties thereon. On November 23, 1893, an action was commenced in the district court for the county of Ada, by the plaintiff against said Thomas B. Gess, to recover the sum of $ 8,465.36, with interest thereon, alleged to be due from said Gess to plaintiff by reason of said Gess having retained said amount, as commissions for money collected by him as taxes due said Ada county for the years 1891 and 1892, over and above the amount allowed by law to be retained by him as such tax collector. Judgment was recovered in suit by the plaintiff against said Thomas B. Gess for the sum of $ 9,525.53 and costs, which judgment was afterward affirmed by this court. Execution was issued on said judgment and returned unsatisfied, and plaintiff brings this action against defendants, as sureties upon the official bond of said Gess as aforesaid, to recover said amount. The case was tried in the district court without a jury, and after the evidence on the part of plaintiff was submitted defendants moved for a nonsuit, which motion was granted, and judgment entered in favor of defendants and against plaintiff for costs, from which judgment this appeal is taken. The case comes to this court upon the following agreed statement or bill of exceptions: "Whereupon, subject to the objection that the said facts are irrelevant and that said alleged judgment is in no way binding upon these defendants or competent evidence against them, the following facts are admitted by counsel for defendants: That on the twenty-third day of November, 1893, an action was commenced in the district court of the third judicial district of the ...