Canyon County ex rel. Griffiths v. Moore

GIVENS, District Judge. This is an action to recover from the appellants, George H. Moore and the United States Fidelity & Guaranty Company, a corporation, a balance alleged to be due on account of money collected by Moore, as assessor and tax collector of Canyon county, Idaho, and not paid over to the county. The sum so claimed to have been retained by the appellant, Moore, was taken from the taxes collected as follows: From the delinquent roll of 1906, collected in 1907, $87.42; returns from tax collections of 1907, $1,510.93; and for the year 1908, $1,626.57. Interest is also asked at the rate of seven per cent. Suit was commenced March 22, 1915. Moore’s last term of office expired at the end of the year 1908. Moore was called by the respondent for cross-examination under the statute, but no evidence was introduced by appellants, and judgment was entered for respondent, against both appellants, for the principal sum and interest. This appeal is from the judgment. Appellant contends that the action is one upon a statutory liability, and barred by C. S., sec. 6611, subd. 1. Respondent contends that there was fraud in the action, hence subd. 4 of C. S., sec. 6611, obtains, and that since the facts constituting such fraud were not discovered by respondent until 1915, the action was not barred. This court has held that an action against an assessor to recover because of his failure to pay to the county treasurer moneys collected in his official capacity is an action upon a liability created by statute, and hence C. S., sec. 6611, subd. 1, prescribes the time within which such action must be commenced. The action in the case at bar [736] is such an action, and is not an action for a penalty or forfeiture. (Wonnacott v. County of Kootenai, 32 Ida. 346, 182 Pac. 353.) Board of Commrs. of Cloud County v. Hostetler, 6 Kan. App. 286, 51 Pac. 62, one of the main cases cited in the Wonnacott case in support of the conclusion there reached, apparently repudiates respondent’s theory, and it would therefore appear that the Wonnacott case is controlling herein. The statute of limitations had therefore run at the time this suit was brought. This conclusion renders it unnecessary to consider the other points raised on appeal, and the judgment is therefore ordered reversed. In fairness to the trial judge it should be stated that the case herein was tried and decided prior to the time the decision in the Wonnacott case, supra, was rendered. Costs awarded in favor of appellants. McCarthy, Dunn and Lee, JJ., concur,