County of Mendocino v. Johnson

HENSHAW, J. This is an action brought by the county of Mendocino against J. E. Johnson, formerly its tax collector, and against the sureties upon his official bond, to recover the sum of $3,000, moneys which it is alleged were collected by the tax collector and not accounted for by him in accordance with law. The cause was tried by a jury, which rendered a verdict for plaintiff in the sum of $2,886.80. From the judgment which followed, and from the order denying defendants a new trial, they prosecute these appeals.

The complaint alleged that the defendant Johnson, as tax collector, on and after the first day of October, 1894, and before the seventh day of January, 1895, collected and received the sum of $132,884.69, which he should have paid into the treasury of the county on or before the seventh day of January, 1895, “but that he did not pay prior to the seventh day of January, 1895, and has not since, of the moneys aforesaid, paid into the treasury of said county any other or greater sum than $129,-897.69.

Plaintiff’s case rested mainly upon the testimony of the county treasurer, who said that upon the eighteenth day of December, Mr. Hardy, the deputy tax collector, had demanded of him a receipt for three thousand dollars, which he asserted he had paid into the treasury upon the eleventh day of December preceding, and Handy stated, according to the testimony of the county treasurer: “I came in and you were out of your office. I set it down on the floor. I went out and then went to my office to get more money, and forgot to come back.” He testified fur[339]ther that Handy had said that he obtained the money from Mr. Bedemeyer’s bank upon that day, and that Bedemeyer had accompanied him when he left the money. The treasurer then asked Mr. Bedemeyer if Handy had obtained the money from him, and Mr. Bedemeyer answered, “Tes; I come with him.” Hnder these circumstances the treasurer says he gave to the tax collector a receipt for $3,000 more than was paid him. He also in January and in February made his sworn statements, as required by law, to the effect that this $3,000 had actually been paid in and was in his possession. He further testified that his books showed that he had not received the $3,000, and that in a subsequent conversation with Mr. Bedemeyer (the banker with whom the tax collector seems to have deposited funds awaiting the time of his settlement with the treasurer) the latter informed him that he was mistaken when he said that he had accompanied Handy upon the eleventh; that Handy had drawn $3,000 from the bank upon the eleventh, but that he had not accompanied Handy, and did not know what disposition Handy had made of the money.