George v. Webster County

• Decision Date: 18 November 1930
• Docket Number: 40588
• Citation: 233 N.W. 49,211 Iowa 164
• Parties: RUSSELL GEORGE, Appellant, v. WEBSTER COUNTY, Appellee
• Court: Iowa Supreme Court

233 N.W. 49

211 Iowa 164

RUSSELL GEORGE, Appellant, v. WEBSTER COUNTY, Appellee

No. 40588

Supreme Court of Iowa, Des Moines

November 18, 1930

Appeal from Webster District Court.--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, for appellant.

John E Mulroney and Price & Burnquist, for appellee.

GRIMM J. MORLING, C. J., and EVANS, FAVILLE, and KINDIG, JJ., concur.

OPINION

GRIMM, J.

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 in to 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 $ 500 or fraction thereof, two per cent; on all in excess of $ 500 and under $ 5,000, one per cent; on all over $ 5,000, 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 On March 18, 1923, this paragraph was repealed by Chapter 102 of the Acts of the Fortieth General Assembly.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:

"Retroactive effect. Where property has heretofore been sold at sheriff's sale and the time of redemption has not yet expired and the debtor, or other lien holder, redeems from the sale, the county shall refund to the debtor, or whoever redeems, the fees collected by the sheriff at the time of sale under the law repealed by Section 1 of this act, or if the property is not redeemed, then the county shall refund said fee to the holder of the certificate of sale at the time the redemption period expires."

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.

Section 11007 of the Code of 1927 provides as follows:

"11007. Period of. Actions may be brought within the times herein limited, respectively, after their causes accrue, and not afterwards, except when otherwise specially declared: * * *

"5. Unwritten contracts--injuries to property--fraud--other actions. Those founded on unwritten contracts, those brought for injuries to property, or for relief on the ground of fraud in cases heretofore solely cognizable in a court of chancery, and all other actions not otherwise provided for in this respect, within five years." (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 liability 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 20 years from the time the cause of action arises."

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.

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 this respect within five years," as found in Subsection 5 of Section 11007 of the Code of 1927? Manifestly, the...