Appeal by defendants from a judgment in favor of plaintiff and from an order denying motion for a new trial. The defendant Hall was elected county recorder of the county of Sonoma at the November election, 1890, and on December 1, 1890, he executed his official bond in due form, with the other defendants as sureties. It is alleged that from March 1st to the end of December, 1892, the defandant Hall, in his official capacity, performed official services, and ought to have charged and collected as the legal fees therefor, and did charge and collect as the legal fees therefor," the sum of $1,210.87, for official services, in excess of the amount paid to the county by him; and that the said amount is due the county and remains unpaid. The action was commenced March 20, 1896, — less than four years but more than three years after it became the duty of defendant Hall to collect and pay the said money to the county. The facts are fully stated in the amended complaint, and the defendants demurred thereto upon the ground that it appears upon the face thereof that the alleged cause of action is barred by subdivision 1 of section 338 and subdivision 1 of section 339 of the Code of Civil Procedure. The court overruled the demurrer, and the defendants pleaded the statute in their answer. The court found that the action was not barred. We think the vital question in the case, and the only one necessary to be discussed, is as to whether or not the cause of action was barred at the time of the commencement thereof. It was the duty of defendant Hall, under the statute, to pay the fees collected for each month to the county on the first Monday of the following month. (County Govt. Act, Stats. 1891, p. 418, sec. 219.) A cause of action, therefore, existed in favor of the plaintiff and against defendant Hall on the day after the first Monday in January, 1893, for the whole amount claimed in the complaint. The code provides that an action must be commenced within three years "upon a liability created by statute, other than a penalty or forfeiture." (Code Civ. Proc., sec. 338, subd. 1.) It will be noted that the complaint seeks to charge defendant Hall with the legal fees that he ought to have collected, and the findings follow the language of the complaint, and find *Page 593 that the amount was fees that defendant Hall ought to have charged and collected." The fees that ought to have been collected are the legal fees, at the rate prescribed by statute. The duty of the defendant Hall to collect the fees with which it is sought to charge him being fixed by statute, the rate or amount of such fees being fixed by statute, the liability for not paying them being fixed by statute, and the office which he held being the creation of the statute, we think this cause of action is upon a liability created by statute within the meaning of the code. (Higby v. Calaveras County, 18 Cal. 180; People v. VanNess, 76 Cal. 124.)
The language of subdivision 2 of section 12 of the Code of Civil Procedure of the state of Kansas is the same as our statute above quoted, and it has been expressly held by the supreme court of Kansas, in an action upon the official bond of the county clerk, for fees received by him and not accounted for, that the liability of the clerk was statutory. In the opinion it is said: "The cause of action alleged, as we think, is one upon a liability created by a statute, and should have been brought within three years after it accrued. (Commissioners of GrahamCounty v. Van Slyck, 52 Kan. 627.) It is argued that the action being upon an official bond, the five years' statute provided in subdivision 5 of section 18 of the Civil Code should be applied. This contention cannot be sustained. An action accrued against the defendant for the fees collected and unaccounted for at the quarterly settlement following the receipt of such fees. The public records disclosed the performance of the official services by the clerk and what fees should have been charged and collected." The same rule was again adopted in Davis v. Clark,58 Kan. 459.
It follows, that, independent of the official bond, the cause of action was barred at the time it was commenced as to defendant Hall. If there had been no bond executed by Hall, and this action had been brought against him alone, there would be no doubt but that it was barred at the time it was commenced. Does the statute apply to the sureties on the written undertaking? or in other words, can the sureties on the official bond plead the statute which has run against the cause of action?
Sureties are never held beyond the strict terms of their contract, and, in general, they have the right to avail *Page 594 themselves of all the defenses that would be allowed by their principal. The object of requiring a bond from a public officer is, that the county or state may be secured from any injury caused by the neglect of duty or dishonest act of the official. Here the bond was security to the county, and given, among other things, for the purpose of indemnifying the county against the loss that it might suffer by the failure of Hall to pay the amount in controversy. The county had the right to look to the bond as security for the amount of all damages caused by the breach thereof, but it also owed a duty to the sureties. It should have brought the action for breach before such action had become barred by the statute. The gist of the action is the failure of Hall to pay the moneys to the county. When he failed to do so he committed a breach of the bond. The defendants, other than Hall, are made defendants for the purpose of securing a judgment against them, in order to collect the amount of damage caused by the breach. The bond is not the cause of action, but collateral thereto, and a means of which the county might avail itself. If the defendant Hall had, instead of giving the bond, given a mortgage upon real estate, properly conditioned, as indemnity for any breach of his official duty, the mortgage would have been an instrument in writing, but it could not be held to give a cause of action to the county after the time had run for commencing an action for the breach. Surely, the sureties cannot be in a worse position than the principal would have been if sued independent of the bond. If defendant Hall could escape liability by reason of the statute, the other defendants are certainly in no worse position. The bond did not impose upon Hall any duties other than or different from those created by the statute. It created no liability upon the sureties, so long as Hall performed his duties as required by the statute. The liability arose only when Hall neglected to make the payment. The bond was collateral security for the liability.
In the case of Paige v. Carroll, 61 Cal. 211, the action was against the defendant as sheriff, and the sureties on his official bond, for the wrongful seizure of property. The cause of action as against the sheriff had become barred because not brought within two years after the wrongful seizure. It was claimed that the statutes did not apply to the action upon the bond, as it was brought within four years after the wrong complained of, but this court held the position untenable. *Page 595 In the opinion it is said: "We cannot believe that the object was to allow a longer period for commencing an action against him and his sureties for such liability than is allowed for commencing an action against him alone for it."
The question arose in Ohio in the early case of State v.Conway, 18 Ohio, 234. The action was against a sheriff and the sureties on his bond. The action against the sheriff for the misfeasance had become barred, but it was claimed that the bond being in writing, the statute as to bringing actions upon written instruments applied. The court, in an able opinion by the chief justice, held that the action was barred as to the sureties. In the opinion it is said: "The actual cause of action is not the execution of the bond — that is more in the nature of collateral security — but the cause of action is the misfeasanse, the false return. Without proof of the false return, there could be no recovery. The action is, in effect, although not so in form, an action against an officer for misfeasance in office. So far as actions of this character are concerned, the limitation acts upon the cause, not the form, of action. And the effect of the statute cannot be evaded by any change in the form of action." This case has been since followed and approved in the same state. (Ohio v.Blake, 2 Ohio St. 147; Mount v. Lakeman, 21 Ohio St. 643.)
In Ryus v. Gruble, 31 Kan. 767, it was held that an action would not lie against the sureties on a sheriff's bond after the cause of action as against the sheriff had become barred. In the opinion it is said: "The bond does not give the cause of action; the wrongs or delicts do; and the bond simply furnishes security to indemnify the persons who suffer by reason of such wrongs or delicts; and while the statute cited by plaintiff operates to bar every action brought upon the bond to enforce a cause of action which accrued more than five years prior to the commencement of the action, yet such statute does not operate to suspend the operation of the other statute of limitations, or to continue in force or revive a cause of action which had already been barred by some one of the other statutes of limitations."
The rule has since been approved by the same court in the later case of Commissioners of Graham County v. Van Slyck, 52 Kan. 622;Davis v. Clark, 58 Kan. 454; Provident Loan Trust Co. v. Walcott,5 Kan. App. 473; Allen v. State, 6 Kan. App. 915. *Page 596
In the case of Ware v. State, 74 Ind. 185, the same rule was applied in favor of the sureties on an auditor's bond, in an action to recover for misappropriation of money, where three years had elapsed before the action was commenced. The question is very fully reviewed in the late case of Spokane County v.Prescott, 19 Wn., 418.1 The case is very much like the one at bar. The county treasurer of Spokane County had on hand, January 14, 1895, some fifty-three thousand dollars, which it was his duty, under the statute, to pay to his successor in office. There, as here, the cause of action as against the treasurer for his failure to pay became barred in three years, — to wit, January 14, 1898. The action was commenced against the treasurer and his bondsmen, January 27, 1898, and it was claimed that the action was upon the undertaking, and that the undertaking was an instrument in writing, and the six years applicable to written instruments under the code of Washington applied. The court held that the action, being barred as to the treasurer, was barred as to the sureties, and in the opinion said: "The essence of this action is for the breach of those statutory duties imposed upon the treasurer. His duties under the statute are not contractual. . . . The undertaking of the sureties was collateral security for the performance of the duties of their principal. The bond itself is security that an officer will discharge his duties. His failure to discharge them is a breach of a statutory duty. The bond does not impose any obligation upon him different from that created by the statute."
Respondent's counsel have cited several case of this court which it is claimed support the contention that the period of four years applies to an official bond. We have carefully examined them, and find no case laying down such rule. In some of the cases, expressions are used which in some degree tend to support the contention, but upon examination it will be found that the point was not involved, and the language obiter dictum. Thus in People v. Burkhart, 76 Cal. 606, the action was against a tax-collector and his sureties on his official bond for the failure to pay over money collected by him as taxes. The action was brought within three years after the alleged misfeasance. It was contended that the action was barred by subdivision 2 of section 339 of the Code *Page 597 of Civil Procedure, which provides that an action must be brought within two years against a sheriff upon a liability incurred by the doing of an act in his official capacity. It was properly held that the section did not apply to the tax-collector, because the office was a distinct and separate office, and that the tax-collector had given a bond as such. This was all that was necessary to be decided in the case, but in the opinion the language is used: "It is clear that the obligation which the defendant incurred was by virtue of his failure to perform his duty as tax-collector, and that being ing so, section 337 of the Code of Civil Procedure would have applied, had four years elapsed from the time of his dereliction of duty until suit brought." If four years had elapsed, section 337 might have applied; but it does not follow, and it was not held, that the three years' period prescribed in section 338 did not apply.
The opinion of Mr. Justice Thornton in People v. Van Ness,79 Cal. 89,2 at first view seems to be in conflict with the conclusion here reached. But upon examination of the record in that case it appears that counsel urged that the action was barred by the provisions of section 337 of the Code of Civil Procedure. It was insisted that the conversion and breach were more than four years before the commencement of the action. The court held that the breach was within four years. The case was argued and decided upon the theory that the action was upon the bond, and that if brought within four years after the breach, it was in time. Subdivision 1 of section 338 of the Code of Civil Procedure was not relied upon, nor called to the attention of the court.
In Ventura County v. Clay, 114 Cal. 245, all that is said as to the statute of limitations is: "There is no merit in the point that the cause, or any cause, of action appears to be barred by any statute of limitations. The complaint shows that all the warrants were paid by the treasurer during his said term of office, and within three years next preceding the commencement of the action, and, as above shown, the action is upon a written contract, and not upon a penal statute."
The court only meant that for the purpose of the case the undertaking was a written contract as to its covenants. It did not hold that cause of action was the bond, and not the misfeasance of the treasurer. *Page 598
It follows that the judgment and order should be reversed and the cause remanded, with directions to the court below to sustain the demurrer to the amended complaint.
Haynes, C., and Chipman, C., concurred.
For the reasons given in the foregoing opinion the judgment and order are reversed and the cause remanded, with directions to the court below to sustain the demurrer to the amended complaint. Harrison, J., Garoutte, J., Van Dyke, J.
1 67 Am. St. Rep. 733.
2 12 Am. St. Rep. 134.