George v. Webster Cnty.
| Decision Date | 18 November 1930 |
| Docket Number | No. 40588.,40588. |
| Citation | 233 N.W. 49,211 Iowa 164 |
| Parties | GEORGE v. WEBSTER COUNTY. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Webster County; O. J. Henderson, Judge.
Action at law to recover from Webster county a refund of sheriff's fees paid as part of the costs in an execution sale under foreclosure. A demurrer to the petition was filed and sustained. The plaintiff appeals. The facts appear in the opinion.
Affirmed.
F. J. Kennedy, of Estherville, for appellant.
John E. Mulroney and Price & Burnquist, all of Ft. Dodge, for appellee.
In 1923 one Schleichhardt brought a foreclosure suit against E. R. Doyle et al., in the district court of Webster county, Iowa. The sheriff's certificate in this foreclosure was issued on February 26, 1923, to one Rich. The sheriff of Webster county collected from Rich $112.50 as a part of the costs of said execution sale, and the money was turned into Webster county under the provisions of paragraph 7 of section 1 of chapter 49 of the Acts of the Thirty-Seventh General Assembly. The plaintiff is the assignee of Rich.
Said chapter 49 provides as follows:
“Each sheriff is entitled to charge and receive the following fees: * * *
7. For collecting and paying over money, on the first five hundred dollars or fraction thereof, two per cent; on all in excess of five hundred dollars and under five thousand dollars, one per cent; on all over five thousand dollars, one-half per cent.”
This chapter was approved March 17, 1917. On March 18, 1923, this paragraph was repealed by chapter 102 of the Acts of the Fortieth General Assembly. Section 3 of said chapter reads as follows:
Said chapter 102 was approved March 15, 1923. This suit was started November 15, 1929. By the demurrer the defendant raised the point that the action was barred by the statute of limitations.
I. Section 11007 of the Code of 1927 provides as follows:
(Writer's italics.)
It will be noted that chapter 102 of the Acts of the Fortieth General Assembly was approved March 15, 1923; it became effective on publication, which was completed March 18, 1923. If, as the defendant contends, the right of recovery involved herein is covered by subsection 5 of section 11007, hereinbefore set forth, then the cause became barred on March 18, 1928, or more than a year and a half before this suit was begun.
It is the contention of the appellant that plaintiff's claim for a refund of the fees herein involved is a liabilty created by statute, and therefore is a “specialty debt,” and the claim is not included in or barred by the general statute of limitations. Statutes of limitations sometimes contain special provisions for acts based on statutory liabilities. There is no such provision in the statute of limitations of Iowa. The question then is whether, as is claimed by the appellant, “since there is no statutory limitation as to specialties in Iowa, the common-law rule applies and there is a presumption that the claim is barred at the expiration of twenty years from the time the cause of action arises.”
[1] When did this cause arise? Manifestly when chapter 102 of the Acts of the Fortieth General Assembly became effective, in March, 1923. See Harrison County v. Dunn, 84 Iowa, 328, 51 N. W. 155;Scott County v. Townsley, 174 Iowa, 192, 156 N. W. 291.
[2][3] In the absence of any specific provision in the statute of limitations applying to rights created by statute, what interpretation is to be given to the words, “and all other actions not otherwise provided for in...
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