County of San Luis Obispo v. Farnum

Haynes, C. This is an action upon the hond of C. A. Farnum, as county auditor of the county of San. Luis Obispo, to recover the sum of eight hundred and; ninety-six dollars and ten cents, alleged to have been received by him, as auditor, from the license tax-collect- or of said county, the same being moneys collected for license taxes due the county from various individuals* and which Farnum had failed to pay over to the county treasurer; the other defendants and appellants, R. E.. Jack and I. Goldtree, being the sureties upon said bond*.

The complaint alleges that said moneys were received by Farnum at divers times, unknown to plaintiff, between January 2, 1889, and January 3, 1891, which dates cover and include the entire term for which said bond was given. This action was commenced May 29[1893].

The defendants demurred to the complaint: 1. That the facts stated do not constitute a cause of action; and 2. That the cause of action stated is barred by the pro[568]visions.of section 337, and subdivision 1 of section 338, and .subdivision 1 of section 339.of the Code of Civil Procedure.

• The demurrer was overruled; the defendants answered, denying all the allegations of the complaint, and alleging that the cause of action is barred by the provisions of the code above mentioned.

The court found for the plaintiff, and entered judgment against all the defendants for the sum of seven hundred and thirty-nine dollars and eighty cents. This appeal is by all the defendants from said judgment upon the judgment-roll.

As to the liability of appellants Jack and Gold tree, as sureties upon the bond of Farnum, as auditor, this case cannot be distinguished from the case of San Luis Obispo County v. Farnum, No. 19488, ante, p. 562, this day filed, and upon the authority of that case this judgment must be reversed as to the sureties upon said bond.

In that case it was held, however, that, treating the allegations of the complaint in relation to the bond as surplusage, there was, nevertheless, a cause of action stated ^against Farnum; and that though he did not receive the money in his official capacity as auditor, it was money belonging to the county which he had no right to retain, ;and therefore affirmed the judgment as to him. In that •case, however, there was no question made upon the statute of limitations, .while here it is directly pleaded.