Oconto Cnty. v. Macallister

• Decision Date: 28 October 1913
• Citation: 155 Wis. 286,143 N.W. 702
• Parties: OCONTO COUNTY v. MACALLISTER ET AL.
• Court: Wisconsin Supreme Court

155 Wis. 286

143 N.W. 702

OCONTO COUNTY

v.MACALLISTER ET AL.^d1

Supreme Court of Wisconsin.

Oct. 28, 1913.

Appeal from Circuit Court, Oconto County; Samuel D. Hastings, Judge.

Actions by Oconto County against Angus MacAllister and others. From judgments sustaining demurrers to the complaints, plaintiff appeals. Reversed and remanded.Adolph P. Lehner, Dist. Atty., of Oconto Falls, and John B. Chase, Asst. Dist. Atty., of Oconto, for appellant.

Greene, Fairchild, North, Parker & McGillan, of Green Bay, for respondents.

TIMLIN, J.

In each of these three actions the appellant county seeks to recover from the county treasurer MacAllister and the sureties on his official bond. In each the complaint was demurred to, the demurrer sustained, and thereafter judgment entered in favor of the defendants. In each the complaint, except as to dates, omission of scroll hereinafter mentioned, and names of sureties, is identical. One synopsis of the complaints is sufficient to show the questions arising in each. The complaint averred that MacAllister was county treasurer of the appellant, and the other respondents the sureties on his official bond. The town, city and village treasurers in a given year returned a stated amount of taxes delinquent, and the county treasurer in that year collected a stated amount of such taxes, with interest and fees, after the delinquent return and prior to the tax sale, and also collected a stated amount of interest and fees in other cases where the lands were sold at tax sale. Part, but not all, of the moneys so collected was paid over by the county treasurer. These averments are repeated for each year of each term, with a difference only in amounts and dates. The remainder due is stated. It is further averred: That, while treasurer, respondent failed and omitted to make or cause to be countersigned or to file or cause to be filed with the county clerk the duplicate receipts required by section 1129, Stats. That he failed to make entries in his books of account of the sums so received, but did in fact enter in said books for such receipts a less sum than that received. That he entered in said books a false statement of the actual amount of interest and fees, and a false statement of the actual amount of the face of the tax going to make up the aggregate of the tax certificates carried in his certificate account, thus making it appear that the aggregate sum evidenced by certificates of sale contained a greater amount than it actually contained, and therefore a less amount of interest and fees than he actually received. In each year the treasurer made and filed an annual report containing false statements of the amount of these delinquent taxes, interest and fees collected by him. All of these omissions and false entries were for the purpose of concealing from the plaintiff and its county board the fact of the treasurer withholding said funds, and the false entries and omissions did conceal this fact. That neither the plaintiff county nor its board of supervisors or any member of the latter had, prior to August 29, 1910, notice or knowledge that there was any default in the condition of the treasurer's bond, or that the county was entitled to recover thereon, and the appellant and its county board of supervisors had no knowledge or information that the treasurer had failed to account as required by law, or that he had unlawfully converted said sums of money, or any part thereof. Demand upon respondent MacAllister was made before the commencement of this action, and on November 19, 1910, but he neglected and refused, etc. Judgment for a stated sum is asked. By stipulation of counsel we are also to treat the complaint as if it contained an allegation to the effect that the treasurer in receiving before sale a payment of taxes returned delinquent entered the fact and date of such payment on the proper delinquent return opposite the tax so returned delinquent and the description of land on which such taxes were assessed or the name of the person paying delinquent personal property taxes, together with a reference by number to the duplicate receipt for such payment, also numbered and kept on file in the said county treasurer's office, which duplicate receipt showed in each case the tax collector's fees, interest charged, and advertising fee, if any, included in such payment. The complaint avers that MacAllister entirely omitted and failed to make or cause to be countersigned by the county clerk, or to file in the office of the county clerk, any duplicates of the receipts made and delivered to the taxpayers. This stipulation seems to modify the averments of the complaint to the extent that MacAllister did keep a duplicate receipt, not countersigned by the county clerk nor filed in the office of the latter, but on file in the county treasurer's office, and that this duplicate receipt showed in each case the tax collector's fees, interest, and advertising fee, and it further seems to add to the complaint what is equivalent to an averment that MacAllister did enter on the delinquent tax roll opposite the property taxed, or in case of personal property opposite the name of the person taxed, the fact, date and amount of payment.

For convenience of reference these cases will be numbered (1), (2), and (3). No. (1) covers the county treasurer's term ending on the first Monday of January, 1891; No. (2) covers the county treasurer's term ending on the first Monday of January, 1897; and No. (3) such term ending on the first Monday in January, 1899.

[1] When the cause of action accrued in No. (1) on the first Monday of January, 1891, the period of limitation was, by section 4220, R. S. 1878, 20 years. Chapter 268, Laws of 1893, introduced a new limitation applicable to a particular condition after the cause of action had accrued in No. (1). It contained no repealing clause, nor anything inconsistent with the continuation in force of section 4220, except as to the special case covered by the 90-day clause, hereinafter referred to. By section 4976, R. S. 1878, Stats. 1898, Wis. Stats. 1911, this statute of limitation in force when the cause of action accrued must be held “operative to determine all such limitations and periods of time which shall have previously begun to run.” It does not appear upon the face of the complaint that this action was commenced after the first Monday of January, 1911; hence if the case is covered by the 20-year limitation in force when the cause of action accrued at the close of the county treasurer's term, the right of action is not barred, unless barred by said 90-day clause. From the enactment of chapter 268, Laws of 1893, to the revision of 1898 there was no change in the statutes of limitation in question. During the period last mentioned, but only as to causes of action accruing during that period, there were (omitting the 90-day provision) two statutes of limitation in force affecting actions on official bonds under seal, viz., section 4220, which provided a period of 20 years from the time the cause of action accrued, and chapter 268, Laws of 1893, which provided a period of three years after the municipality had received both notice and knowledge of the fact that there was a default in the conditions of the bond, and that it was entitled by law to recover. In cases in which the municipality had at the time of the passage and publication of this act of 1893 such notice and knowledge for three years there were 90 days allowed within which to bring an action. Such notice and knowledge would, as to causes of action accruing during the period between 1893 and 1898, shorten the limitation of 20 years to 3 years in case of notice and knowledge, and in the particular case mentioned to 90 days. The revision of 1898 brought about a change in chapter 268, Laws of 1893, which became section 984 of that revision, by dropping out the words “notice and,” and by omitting the provision relating to suits within 90 days and otherwise, so that the statute thereafter and now reads: “Within three years from the time such county * * * received knowledge of the fact that there was a default in some of the conditions of such bond and that it was damaged because thereof.” In the same revision section 4220 was changed so as to expressly except from it those sealed instruments mentioned in said section 984 of the same revision. During all this time section 4976, Stats., was and it still is in force and effect. By force of the last-mentioned section the statute of limitations, which had begun to run on the cause of action pleaded in No. (1), continued to run and to govern the time within which such action must be brought, because no statute otherwise expressly provided, except in those special cases in which the municipality had had for three years both notice and knowledge of the fact that there was a default in the conditions of the bond, and that it was entitled by law to recover thereunder. It is significant that in order to have this effect there must be both notice and knowledge, not only of the facts, but also of the legal rights of the municipality. If it does not appear upon the face of the complaint that the municipality had such notice and knowledge for three years prior to the enactment of said chapter 268, the limitation provided by section 4220, supra, was continued in force by section 4976, and the judgment in No. (1) must be reversed.

[2][3] 2. In No. (2) the cause of action accrued prior to the revision of 1898, but after the enactment of said chapter 268. It therefore falls within the purview of section 4976, Stats., and is affected by two limitations, viz., 3 years if there was notice and knowledge, 20 years if there was not. Hence the judgment in No. (2) must also be reversed, unless the county had notice and knowledge as stated in the statute or unless the case can be distinguished and brought under the six-year statute of limitations by reason of the fact that no...