People v. Weineke
Before: Chipman
Synopsis
Action on Tax Collector’s Bond—Statute of Limitations—Accrual of Cause of Action—Pleading.—A complaint in an action on thebord of a tax collector, which charges a delinquency occurring on the first Monday of December, 1891, more than four years before the commencement of the action, in the failing and neglecting to pay to the county auditor a specified amount of state and county taxes previously collected by him, and alleges that they were not then paid, and have never since been paid, states only a cause of action accruing at the date alleged, and not accruing at the expiration of the term of office, and which is barred by section 337 of the Oode of Civil Procedure although the term of office expired within less than four years before such commencement.
Id.—Averment of K onpayment.—The averment of nonpayment of the taxes at any time since the date alleged does not state an additional cause of action for subsequent nonpayment, at the expiration of the term of office.
Id.—Final Settlement of Year’s Laxes—Running of Statute.—In view of the provision of the statute requiring that a final settlement of all taxes charged against the tax collector on the assessment-book, shall he made by him with the auditor on the third Monday in January, considered in connection with the complaint, the statute of limitations on the cause of action alleged began to run at least by that date, and an action for the taxes previously collected would he barred in four years, thereafter.
CHIPMAN, C. This is an action to recover the sum of $15-946.27 from defendant Weineke, lately tax collector of San Diego county, and the other defendants, his sureties upon his official bond. Judgment was given against defendant Weineke by default and in favor of the other defendants upon their demurrer to the complaint. The appeal is from the judgment on the demurrer.
The complaint alleges that defendant Weineke was the duly qualified and acting tax collector for two years from the first Monday after the first day of January, 1891. “On the first Monday in December, 1891, and for five days thereafter, the said defendant H. W. Weineke, as said tax collector, wholly failed and neglected to settle with the county auditor of said county for all moneys collected for said state and county taxes for the fiscal year ending June 30, 1892, and wholly failed to pay the same to the county treasurer of said county, and has ever since said first Monday in December, 1891, wholly failed to settle, and has never settled, with the county auditor of said county for all said moneys collected by him, the said Weineke .... and has wholly failed and neglected to pay -and has never paid all the moneys, .... and failed and ever since said day has failed to deliver to or file in the office of the said county auditor the -statement showing an account of all his transactions and receipts as such tax collector and the payment of all the money collected by him as tax collector.”
The complaint further alleges that defendant Weineke, on December 7, 1891, had collected and received-for the use of the state and county $24,532.73 as state and county taxes for the fiscal year ending June 30, 1892, of which $15,946.27 has never “been paid to the county treasurer of said San Diego, as required by law.....Defendant Weineke never at any time settled with the auditor of said county for said balance .... or any part thereof, .... and has ever since said December 7, 1891, wholly failed and-neglected to settle with the county auditor for said balance, .... and has never paid said sum or any part thereof to the county treasurer, .... and the whole thereof is [537]still wrongfully and unlawfully retained .... and is wholly unpaid, due, and owing,” et cetera.
The only question discussed by counsel is whether the action is barred by 'the four-year limitation of the statute. The complaint was filed December 29, 1896—more than five years after December 7, 1891, but less than four years after Weineke’s term of office expired.
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