Rhea v. Brewster

• Decision Date: 07 June 1906
• Citation: 130 Iowa 729,107 N.W. 940
• Parties: RHEA v. BREWSTER ET AL.
• Court: Iowa Supreme Court

130 Iowa 729

107 N.W. 940

RHEA

v.BREWSTER ET AL.

Supreme Court of Iowa.

June 7, 1906.

Appeal from District Court, Sioux County; William Hutchinson, Judge.

The plaintiff alleged that the defendant George Brewster was clerk of the district court of Sioux county during the period mentioned, and that Lewis Brewster and John Morris were the sureties on his official bond; that on March 26, 1902, Henry Meylink instituted an action against the plaintiff, David A. Rhea, and wife, praying for the specific performance of an oral contract to convey a quarter section of land, and paid into the office of said clerk $9,430 as a tender of the balance of the purchase price; that the cause was heard and specific performance decreed by the district court; that appeal was taken therefrom in February, 1903, whereupon said clerk deposited said money so tendered in court with the banks at Orange City, Iowa, in his name, upon the written promise that they would pay interest at the rate of 4 per cent. per annum thereon; that said decree was affirmed by the Supreme Court in February, 1904; that the interest on the deposits then amounted to $377.20; that the clerk paid upon demand the principal amount to plaintiff, but refused to pay the interest. Wherefore judgment was demanded therefor, with interest. The official bond was attached to the petition. The defendant demurred on the grounds: (1) That the petition showed that the amount received has been paid over to the party entitled thereto; and (2) that the defendant George Brewster received said money with the duty to safely keep and preserve the same, and pay over, upon the order of the court, to the person entitled thereto, and that he is in no manner liable for any incidental advantage accruing to him by reason thereof. The demurrer was overruled, and, as the defendant refused to further plead, judgment was entered as prayed. The defendants appeal. Affirmed.Van Oosterhout & Hospers, for appellants.

Struble & Struble, for appellee.

LADD, J.

On the 26th day of March, 1902, Henry Meylink filed his petition in the district court of Sioux county, demanded the specific performance of an oral contract to sell certain land in Sioux county, and at the same time paid into the hands of George Brewster, as clerk of said court, the sum of $9,430 as a tender of the balance of the purchase price. The defendant therein, David A. Rhea, filed his answer and the cause proceeded to trial, which resulted in a decree as prayed, in December, 1902. Appeal was taken to this court, whereupon the clerk deposited the aforesaid amount in the banks at Orange City, upon their written promise to pay thereon interest at the rate of 4 per cent. per annum. The decree was affirmed. Meylink v. Rhea, 123 Iowa, 311, 98 N. W. 779. On the 26th day of February, 1904, the clerk withdrew from the banks the amounts deposited, together with $377.20 interest, but paid Rhea the original amount tendered only, retaining the interest for himself, though this also was demanded. The defendants John Morris and Lewis Brewster are the sureties on the clerk's official bond approved March 26, 1902, and the question to be determined is whether he and his bondsmen are liable for interest received by him on money paid into his hands by Meylink as a tender for use and benefit of the plaintiff. The conditions of the bond were those exacted by section 1183 of the Code, and among other things stipulated that “the clerk will promptly pay over to the officer or person entitled thereto all moneys which may come into his hands by virtue of his office.” The money came into his hands by virtue of his office, and, though as a tender in a case, became the property of the plaintiff upon the specific performance of the contract to purchase in accordance with the decree of the district court, affirmed by this court, and his title thereto related back to the time of such tender. That the clerk was liable for the money tendered is not questioned. See Billings v. Teeling, 40 Iowa, 607. We think he is liable for any increase or increment thereon. Section 296 of the Code provides what fees shall be collected by the clerk of the court and section 297 fixes his compensation. That duties may be required of him for which no compensation is provided does not authorize the allowance or exaction of additional compensation. Upton v. Clinton Co., 52 Iowa, 311, 3 N. W. 81;Howland v. Wright Co., 82 Iowa, 164, 47 N. W. 1086;City of Council Bluffs v. Waterman, 86 Iowa, 688, 53 N. W. 289;Mousseau v. Sioux City, 113 Iowa, 246, 84 N. W. 1027, and cases cited therein. In undertaking to discharge the duties of the office, he necessarily assumed, with the honors and emoluments, the burdens also. The money did not become the property of the clerk. It was merely deposited with him as custodian for the benefit of the party to the suit who might be adjudged entitled thereto.

The appellants argue the case on the theory that the clerk is absolutely liable for money coming into his hands as such. In view of the form of the bond and the language of the statute, it is exceedingly doubtful whether this is so. See Ross v. Hatch, County Treasurer, 5 Iowa, 149. The decisions relating to the liability of the school district are not in point, as they are based on statutes applicable to such officers only. But see notes to Feller v. Gates (Or.) 91 Am. St. Rep. 492, and Smith v. Patton (N. C.) 92 Am. St. Rep. 783. In either event he had the right to deposit the money for safe keeping. Hunt v. Hopley, 120 Iowa, 695, 95 N. W. 205. Even if absolutely liable for the repayment of the money received by virtue of his office, however, this did not render it his money nor change his obligation to produce it when required, to that of a private indebtedness. So assuming is the vice in the reasoning of the decisions upon which appellant relies. They proceed upon the theory that, when the obligation of the official is absolute, his obligation is merely that of a debtor, and, therefore, that he cannot be charged with the incidental advantages derived from the use of the money. See Maloy v. Bernalillo County Commissioners (N. M.) 52 Pac. 126, 52 L. R. A. 126;State v. Welsen, 17 Colo. 170, 28 Pac. 1119, 15 L. R. A. 456;Com. v. Godshaw, 92 Ky. 435, 17 S. W. 737;Rock v. Stinger, 36 Ind. 346; Renfroe v. Colquitt, 74 Ga. 618. In Rock v. Stinger, supra, the treasurer was held to be the owner of the fund received by him, and for that reason was not bound to account for interest which he realized thereon. In Renfroe v. Colquitt, supra, action was on the bond of the State Treasurer to recover interest on the deposit of public funds. It was held that, as in depositing the money, the treasurer violated a penal statute and, as the interest was acquired through an illegal act, the treasurer did not receive it by virtue of his office. In Com. v. Godshaw, supra, the action was on the official bond of a trustee of the jury fund. Subsequently it was enacted by the Legislature that all the portion of the fund not required for immediate use should be paid to another officer. The trustee failed to turn it over and received interest thereon for a period of ten years. In the course of the opinion it is...