Fowler v. Decatur County
| Decision Date | 11 February 1915 |
| Docket Number | 29975 |
| Citation | 150 N.W. 1061,168 Iowa 722 |
| Parties | P. L. FOWLER, Appellant, v. DECATUR COUNTY, Appellee |
| Court | Iowa Supreme Court |
Appeal from Decatur District Court.--HON. THOMAS L. MAXWELL, Judge.
ACTION at law to recover money alleged to have been deposited with the county treasurer. The demurrer of the defendant was sustained, and plaintiff appeals.
Affirmed.
P. L Fowler, for appellant.
Ed. H Sharp, County Attorney, for appellee.
The petition alleges, substantially, that plaintiff is the assignee of the Iowa Savings & Loan Association; that about January 18, 1898, said association obtained judgment against E. A. Allen et al., in the district court of Decatur County; that July 20, 1898, a special execution was issued against certain property which was returned September 21, 1898, satisfied in part; that the property sold for $ 187.90, and that such amount, less the sheriff's costs, was turned over to the clerk of the court of Decatur County, and that, after paying costs, there was left in the clerk's hands $ 140.05; that July 4, 1899, the clerk, J. C. Stockton, turned over to A. C. Cochran, the then county treasurer of Decatur County, the sum of $ 140.05, to be held in trust for said Savings Association; that on October 11, 1911, said association assigned to J. S. Irish the above named judgment and its proceeds as follows: "In consideration of $ 5.00 and other value, the Iowa Savings & Loan Association hereby sells, assigns and sets over to J. S. Irish its interest in all judgments it may have in the State of Iowa;" that on August 6, 1912, the claim was presented to the county auditor of defendant county and payment refused.
The grounds of the demurrer are, first, that the plaintiff has no legal capacity to sue for the reason that the petition shows that the claim is the property of John S. Irish; second, that the facts stated do not entitle the plaintiff to the relief demanded for the reason that the petition shows on its face that defendant county is in no way indebted to plaintiff, and if the money was paid in to the treasurer, A. C. Cochran, by John C. Stockton, as alleged, Decatur County would be in no way liable for the same, because there is no law authorizing the clerk to turn over money received on judgments to the treasurer or any other party other than the party obtaining the judgment, or his assignees or representatives; third, that there is a defect of party defendant, or that plaintiff's remedy, if any, would be against the treasurer by mandamus to compel him to pay the judgment, or an action against Stockton to recover the amount for wrongfully allowing the money received on the judgment to pass from his hands as clerk; fourth, that the petition on its face shows that the account is barred by the statute of limitations; and fifth, that there is no law allowing or permitting the county treasurer to act as trustee for plaintiffs who obtain judgments in the courts.
1. While the allegations of the petition are somewhat indefinite as to the alleged assignment of the claim, or ownership thereof by plaintiff, and, doubtless, the petition would have been subject to a motion for more specific statement, we think the allegations are sufficient on demurrer. Of course, upon a trial of the case, plaintiff would be required to prove that he was entitled to sue and that he was the proper party to receive the money alleged to have been deposited.
2. Appellant relies entirely upon Sec. 300 of the Code, and cites no other provision of the statute or authority. But it is clear that this section has reference only to fees. Sec. 299 refers to the fees received by the clerk and which he is required to report. Sec. 300 provides, in substance, that on the first Monday in January and July of each year, he shall pay into the county treasury, for the use of the county, all other fees not belonging to his office which are unclaimed, and provides that the fees may be drawn on demand by the person entitled thereto. The statute cannot be enlarged to include the proceeds of judgments. In certain cases an administrator, guardian, trustee or referee, desiring to make a final report, may deposit funds for persons entitled thereto, and, if not paid to such persons within one year, the clerk shall deposit such moneys with the county treasurer, and when the claimant appears he may make application to the district court, who may, if satisfied, direct the county auditor to issue a warrant on the treasure. Code Sec. 370, 371, 372.
Sec 368 of the Code provides that, under certain circumstances,...
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