Heppe v. Johnson

Belcher, C. C. On the twenty-first day of February, 1873, a decree of foreclosure was entered in the District Court in and for Sacramento County, in favor of Nicholas Schadt against William Nicholas Heppe, administrator of the estate of Jacob Heppe, deceased, and others. This decree, among other things, provided:—

“ That if there be any surplus after the payment of the moneys due plaintiff, with interest, attorneys’ fees, costs, and accruing costs, that such surplus be paid into court, to be disposed of under the order of the court to the persons entitled thereto.”

In pursuance of the decree, the sheriff sold the mortgaged property, and after paying the plaintiff and all costs as required, had left in his hands a surplus of $1,178.85, which he paid to Lauren Upson, clerk of the court, on the twenty-first day of March, 1873.

Immediately on receiving the money, Upson deposited the same with John Bellmer, then the county treasurer, and took from him a receipt, which, after reciting the title of the court and cause, reads as follows: —

[267]“ Received, Sacramento, March 21, A. D. 1873, of Lauren Upson, clerk of the court aforesaid, the sum of $1,178.85 in gold coin, paid into court in the above-entitled action, to be kept by me as a special deposit, subject to the order of court.

“ John Bellmer, County Treasurer.”

On the 18th of June of the same year, an order of court was made, which, among other things, declared the plaintiff here entitled to $589.42, one half of the money paid into court by the sheriff, and directed that such sum be paid by the clerk of the court to the lawful guardian of plaintiff.

The other half of the money was paid out, on the order of the court, to the parties entitled thereto, but the plaintiff’s share was kept by Bellmer in a sack, with a tag on it, on which was written the amount of money and the name of the case to which it belonged, until March 6, 1876, when his term of office expired. On that day he turned it over to D. E. Callahan, his successor in office, and took his receipt therefor. The money was deposited with Bellmer, and by him turned over to Callahan, without any order of court or of the county auditor, and no entry of it was ever made in any of the county books. Callahan held the office of county treasurer during three successive terms, the last term ending on the first Monday of January, 1883. It does not appear what became of the money after it was given to Callahan. It was never demanded of him by plaintiff, or by any person in her behalf, nor paid to her or any one for her, nor was it turned over by him to his successor in office. Callahan died, and this action was afterward brought to recover the money, with interest, and costs, from the defendants, who were sureties on each of his official bonds.