Fowler v. Decatur County

Preston, J. The petition alleges, substantially, that plaintiff is the assignee of tbe Iowa Savings & Loan Association; that about January 18, 1898, said association obtained judgment against E. A. Allen et al., in tbe district court of Decatur County; that July 20, 1898, a special execution was issued against certain property which was returned Septem [724] ber 21, 1898, satisfied in part; that the property sold for $187.90, and that such amount, less the sheriff’s costs, was turned over to the clerk of the court of Decatur County, and that, after paying costs, there was left in the clerk’s hands $140.05; that July 4, 1899, the clerk, J. C. Stockton, turned over to A. C. Cochran, the then county treasurer of Decatur County, the sum of $140.05, to be held in trust for said Savings Association; that on October 11, 1911, said association assigned to J. S. Irish the above named judgment and its proceeds as follows: "In consideration of $5.00 and other value, the Iowa Savings & Loan Association hereby sells, assigns and sets over to J. S. Irish its interest in all judgments it may have in the State of Iowa;” that on August 6, 1912, the claim was presented to the county auditor of defendant county and payment refused. The grounds of the demurrer are, first, that the plaintiff has no legal capacity to sue for the reason that the petition shows that the claim is the property of John S. Irish; second, that the facts stated do not entitle the plaintiff to the relief demanded for the reason that the petition shows on its face that defendant county is in no way indebted to plaintiff, and if the money was paid in to the treasurer, A. C. Cochran, by John C. Stockton, as alleged, Decatur County would be in no way liable for the same, because there is no law authorizing the clerk to turn over money received on judgments to the treasurer or any other party other than the party obtaining the judgment, or his assignees or representatives; third, that there is a defect of party defendant, or that plaintiff’s remedy, if any, would be against the treasurer by mandamus to compel him to pay the judgment, or an action against Stockton to recover the amount for wrongfully allowing the money received on the judgment to pass from his hands as clerk; fourth, that the petition on its face shows that the account is barred by the statute of limitations; and fifth, that there is no law allowing or permitting the county treasurer to act as trustee for plaintiffs who obtain judgments in the courts. [725] of assignee: sufficient pleading to show. 1. Assignments : title 1. While the allegations of the petition are somewhat indefinite as to the alleged assignment of the claim, or ownership thereof by plaintiff, and, doubtless, the petition would have been subject to a motion for more specific j _ statement, we think the allegations are sufficient on demurrer. Of course, upon a trial of the cáse,. plaintiff would be required to prove that he was entitled to sue and that he was the proper party to receive the money alleged to have been deposited. 2. Clerk op courts : authority : paying unclaimed money to treasurer: Judgments. 2. Appellant relies entirely upon Sec. 300 of the Code, and cites no other provision of the statute or authority. But it is clear that this section has reference only to fees. Sec. 299 refers to the fees received by the clerk and which he is required to report. See. 300 provides, in substance, that on the first Monday in January and July of each year, he shall pay into the county treasury, for the use of the county, all other fees not belonging to his’ office which are unclaimed, and provides that the fees may be drawn on demand by the person entitled thereto. The statute cannot be enlarged to include the proceeds of judgments. In certain eases an administrator, guardian, trustee or referee, desiring to make a final report, may deposit funds for persons entitled thereto, and, if not paid to such persons within one year, the clerk shall deposit such moneys with the county treasurer, and when the claimant appears he may make application to the district court, who may, if satisfied, direct the county auditor to issue a warrant on the treasurer. Code See. 370, 371, 372. See. 368 of the Code provides that, under certain circumstances, the court may order money paid to the clerk. These sections do not apply here, and appellant does not so claim. [726] 3. County TREASURER : authority : extra-official receipt o£ money: effect. [725] The duties of the county treasurer are prescribed in the Code, Secs. 482 to 492, and there may be some other provi [726] sions for collecting money in special cases. But we are not cited to, and are unable to find, any provision of the statute authorizing the county treasurer to receive, or the clerk to pay to the treasurer, money under the circumstances alleged in this case. corporations: extra-official receipt of money by liability Appellee relies upon and cites only State v. Farrell, 83 Iowa 561. The argument of appellee is, that the mere fact that the money which came into the hands of the clerk by reason of the payment of a civil judgment was by him paid over to the treasurer of the county does not make the county a trustee for J 0 the owner the judgment, because there is no law warranting such transfer and no law that would make the county a trustee under such circumstances ; that, at the most, the money would be held as money had and received, and that, therefore, the claim would be barred by the statute of limitations. The argument is, also, that if plaintiff is entitled to any relief, it would be either against the clerk for wrongfully turning the money over to the treasurer, or against the treasurer for wrongfully receiving the money; that these two officers may not, by their wrongful acts, bind the county and make the county a trustee for money under such circumstances. It is alleged in the petition that the money in question was turned over to the treasurer to be held in trust, and it was so alleged in the petition in the case of State v. Farrell, supra, and that ease was determined upon demurrer. The demurrer was sustained and the decision affirmed by the supreme court. It should be borne in mind that this is an action at law, and not in equity, to establish a trust. We are of opinion that the petition does not allege facts sufficient to show that the money was held in trust for the benefit of the judgment creditor, or its assigns, and that, there being no provision of law authorizing the treasurer to receive [727] tbe money as county treasurer, bis bondsmen would not be liable for the payment of this money, and, if this is so, the county would not be liable. The treasurer might be liable personally, perhaps, if the account was not barred by the statute of limitations, but this we do not determine. If the money is held by the county treasurer extra-officially, for others, the county would not be liable. To hold otherwise would be to hold that many people might, without authority, make deposits with the county treasurer of large sums of money and hold the bondsmen or the county simply because the treasurer takes the money. It should be noticed that the money was paid some fourteen years ago, and it is not shown that the person now occupying the position of treasurer is the same person to whom the money was paid, nor is there any allegation that the then treasurer did in fact turn the money into the county treasury with the funds of the county or that it is so held. Nor is it shown or alleged that the then treasurer turned this money over to his successor. As bearing upon the views here expressed, see: 29 Cyc. 1455; Western Fruit & Candy Co. v. Petersberger, 161 Iowa 436; District of Columbia v. Petty, 229 U. S. 593, 57 L. Ed. 1343. In the Western Fruit & Candy Co. case, supra, it was held that, because the statute did not constitute the clerk of court the custodian of the fund, he did not receive it by virtue of his office, and, though the plaintiff might maintain an action against him personally, he would not be liable on his official bond, and that, because the clerk did not receive the money by virtue of his office, he was not subject to summary proceedings to compel its payment. In the District of Columbia case, supra, it was held that under the evidence in that ease moneys received by an auditor were not public moneys; that funds of private citizens were held extra-officially by the officers, and that the sureties on his bond were not liable therefor. [728] It is our conclusion that the ruling of the trial court was right, and the judgment is — Affirmed. Deemer, C. J., Evans and Weaver, JJ., concur.