(131 Cal. 199) SAN DIEGO COUNTY v. DAUER et al. (L. A. 789.)

(Supreme Court of California.

Dec. 29, 1900.) COUNTY TREASURER-LIABILITY ON OFFICIAL

BOND LIMITATIONS.

Code Civ. Proc. § 337, limits the right of action on any contract obligation to four years; and County Government Act, § 87 (St. 1891, p. 318), requires the county treasurer to keep the county funds in his own possession until disbursed according to law. Held, that an action in 1896 on a county treasurer's official bond for money lost by him by deposit in a bank in 1891, which was then known to the county, was barred by limitations, though his term of office did not expire until 1893, since the cause of action arose when he lost control of the money, and not at the expiration of his term of office.

Commissioners' decision.

Department 2. Appeal from superior court, San Diego county; E. S. Torrence, Judge.

Action by the county of San Diego against C. R. Dauer and others to recover on his official bond as treasurer. From a judgment in favor of defendants, and from an order denying its motion for a new trial, plaintiff appeals. Affirmed.

Atty. Gen. Ford and T. L. Lewis, for appellant. Sam Ferry Smith, Haines & Ward, McDonald & McDonald, H. E. Doolittle, and Oscar A. Trippet, for respondents.

GRAY, C. Plaintiff appeals from a judgment, and from an order denying its motion for a new trial. The defendant Dauer was the treasurer of San Diego county from the first Monday in January, 1891, to the 2d day of January, 1893. This action is on his official bond, and was commenced against him and the sureties on said bond on the 31st day of December, 1896, to recover the sum of $24,108.87, which it is alleged in the complaint he received during his term of office, and did not deliver to his successor or leave in the treasury, but converted the same to his own use. Among many other defenses, the defendant pleaded the statute of limitations (section 337, Code Civ. Proc.), limiting the right of action upon any contract obligation or liability founded upon an instrument in writing executed in this state to four years, and also subdivision 1 of section 338, Id., limiting an action upon a liability created by statute to three years. The case was tried on an agreed statement of facts, from which we gather the following: On account of state. school money due the said county the defendant Dauer on the 13th day of August, 1891, received from the state three warrants aggregating $15,987.70, drawn by the state controller upon the state treasurer, and payable to Dauer's order as county treasurer. On the same day Dauer indorsed and delivered these warrants to the California National Bank, and received certificates of deposit therefor from said bank to the extent of $10,975.70, and the balance, $5,012, in cash. Dauer entered in his books

the whole amount of said $15,987.70 as received in cash. Again, on the 2d day of November, 1891, said Dauer, as county treasurer, received from H. W. Weineke, the county tax collector, in making his monthly settlement, certificates of deposit for $26,114.85, issued by the said California National Bank to said Weineke for county tax collections deposited by him in said bank. At the same time, and on the same monthly settlement, the said treasurer received from said tax collector over $10,000 in coin, and receipted for the whole amount, including the certificates of deposit, as cash, and so entered it in his books. On the close of business on the 11th day of November, 1891, and while said sums aggregating $37,090.55 were yet on deposit therein, no demand for the same having been made by Dauer, said bank closed its doors and ceased to do business, and has not since resumed business. Thereafter a receiver of said bank was duly appointed under the provisions of the national banking laws, and a suit was commenced on March 4, 1892, by the said plaintiff herein against said bank and its officers, and such proceedings were therein had that the claim of the said county, plaintiff, was allowed against said bank, and dividends amounting to the sum of $12,981.68 have been paid thereon to said county, which amount, being credited on the aggregate amount of $37,090.55 on deposit when the bank closed, leaves $24,108.87 unpaid, which is the amount sought to be recovered herein. On January 30, 1892, the chairman of the board of supervisors, together with the county auditor and district attorney of said county, made an actual count of the funds of the county treasury in the hands of said treasurer, and found that he had on hand in coin $139,882.17, and the aforesaid certificates of deposit, representing $37,090.55, and that he should have had on hand $176,972.70. Each month thereafter during said treasurer's term of office the said chairman, district attorney, and auditor made a similar count of said funds, and found and certified to the fact of the treasurer having said certificates of deposit on hand, and having an amount in coin less than he should have, in the amount represented by said certificates of deposit. The board of supervisors of plaintiff on December 19, 1892, passed a resolution reciting, in substance, that "whereas, by an official count of the money on hand it appears that Chas. R. Dauer, county treasurer, has certificates of deposit in his possession issued by the California National Bank (which bank has suspended payment) aggregating $37,090.55; that all of said money is county money, that should be in possession of said official: Therefore, be it resolved that the district attorney be, and he is hereby, instructed and directed to forthwith bring an appropriate action against Treasurer Dauer and the sureties on his official bond to recover the money deposited

by him in the California National Bank at the time of its suspension." In pursuance of the foregoing directions, and on the 20th day of December, 1892, the said district attorney filed a complaint and commenced an action, in which the same parties were plaintiff and defendants, respectively, as in the present action. This complaint was on the said official bond of said treasurer, and sought to recover the said $37,090.55 from said treasurer and his sureties. On the 31st day of December, 1892, the board of supervisors, by a vote of three to two, directed the district attorney to dismiss the said action they had so recently ordered him to begin, and the said action was accordingly dismissed on said last-mentioned date. It will be seen that the recovery sought in the present action is on account of the failure of said treasurer to turn over to his successor in office at the conclusion of his term that portion of the said $37,090.55 sought to be recovered in the action of December 20, 1892, which had not been collected from the said bank. The court found in favor of defendants on their defenses of the statute of limitations mentioned above.

It is contended by appellant that the statute of limitations did not commence to run until the expiration of Dauer's term of office, and that the action would not be barred until the expiration of four years from that time, but we think this contention cannot be upheld. Section 87 of the county government act (St. 1891, p. 318) provides: "The county treasurer must keep all moneys belonging to this state, or to any county of this state, in his own possession, until disbursed according to law. He must not place the same in the possession of any person, to be used for any purpose; nor must he loan, or in any manner use, or permit any person to use, the same, except as provided by law; but nothing in this section prohibits him from making special deposits for the safe keeping of the public moneys, but he shall be liable therefor on his official bond." That was the law in force at the time of the acts complained of, and thereunder it was the duty of the treasurer to keep the funds of the county under his own personal control; and when he lost that control by his own neglect of official duty a cause of action arose on his official bond at once, and the statute of limitations began to run against such cause of action certainly as early as that condition of affairs was brought to the knowledge of plaintiff. Certainly the statute began to run as early as the date of the commencement of the first action on the treasurer's bond, December 20, 1892; and, more than four years having elapsed thereafter before the commencement of the present action, the court below was correct in the conclusion that the cause of action was barred. The failure of Dauer to turn over to his successor at the conclusion of his term of office the funds which he had lost some months prior to that

time did not constitute a new or different cause of action on behalf of the county, so as to affect the running of the statute of limitations. Whether the suit were begun before or after the expiration of said term, the judgment must be the same, and the damages in either case would be measured by the amount of money which had been lost by the treasurer and not previously recovered from the bank; and, if a full recovery were had in a suit brought before the expiration of Dauer's term, it would preclude any recovery thereafter, as the amount in which the treasurer was in default could be recovered but once. Under our statutes the treasurer is the mere custodian or bailee of the funds of the county, and his failure to have certain funds in the treasury at the conclusion of his term of office adds nothing to his previous transgression of having allowed the same funds to remain out of the treasury and become lost to the county. It is only because of the original conversion or loss of the funds that suit can be maintained at any date. The continuance of the loss, conversion, or absence of the funds from the treasury can no more be treated as a new cause of action than can the failure to pay a debt on June 1, 1900, that was due a year before, be treated as a new debt for the purpose of fixing the period of limitations.

Appellant cites People v. Van Ness, 79 Cal. 84, 21 Pac. 554, to show that the statute of limitations for the breach of an official bond does not commence running until the expiration of the official term, but an examination of that case will show that no breach of official duty occurred therein until the expiration of the official term. This is clearly pointed out in People v. Weineke, 122 Cal. 535, 55 Pac. 579, wherein it is said of the former case: "Van Ness was a commissioner of immigration. The question as to whether the statute commenced to run when he converted the funds was not considered, but it was assumed, as the most favorable to defendants, that it did not commence to run until the close of the term of office. When this default arose there was no law requiring the commissioner to pay over to the state treasurer monthly the moneys received by him. Section 2969 of the Political Code, requiring him to do so, was passed March 15, 1883." It is clear that the case cited furnishes us no guide herein. Appellant also cites Mason v. Luce, 116 Cal. 232, 48 Pac. 72, and other cases of the same character, holding that, where there is a provision in a note that the same shall become immediately due and payable on default in the payment of any installment of interest, the statute of limitations begins to run from the date of the expiration of the term of credit, and not from the default in the payment of interest. An examination of those cases discloses that they are based on the theory that the stipulation as to default in the payment of interest "is evidently in the nature of a penalty inserted

for the benefit of the creditor, and when he does not properly claim the benefit of such penalty he waives it," and thereafter the rights and obligations continue, without regard to the forfeiture. Of course, no such principle can apply to this case.

There was no prejudicial error in the trial court refusing to exclude portions of the agreed statement as requested by appellant. It becomes unnecessary to determine any of the other interesting questions discussed in the briefs, because the cause of action, as it appears from the agreed statement, is barred by limitations, whichever statute may be held applicable; and this defeats appellant's right to recover, however correct it may be as to other contentions in the case. The judgment and order appealed from should be affirmed.

We concur: HAYNES, C.; CHIPMAN, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.

(131 Cal. 219)

In re SHAVER'S ESTATE et al. (S. F. 2,421.)1 (Supreme Court of California. Dec. 29, 1900.) JUDGMENT-CONSENT-APPEAL AND ERROR

ESTOPPEL-AFFIDAVITS.

1. Where distributees filed their consent to the settlement and distribution of the estate of a decedent, and accepted the benefits going to them under judgment of final settlement of the administration of the estate, they could not then appeal from such judgment.

2. Affidavits of appellants, tending to show that they consented to the judgment from which they appealed under a misapprehension of fact, will not be considered on a motion to dismiss their appeal, when not presented to the court which rendered the judgment.

Department 1. Appeal from superior court, Marin county; F. M. Angellotti, Judge.

In the matter of the estate of Aaron Shaver, deceased. From a decree of distribution, Annie J. Shaver and Jacob Shaver, distributees, appeal. On motion, the appeals were dismissed.

T. Z. Blakeman, for appellants. Lennon & Hawkins, for respondents.

HARRISON, J. Motion to dismiss the ap

peal.

The executor of the last will and testament of the above decedent presented to the superior court for final settlement an account of his administration of the estate, and at the same time a petition for the distribution of the estate remaining in his hands, setting forth therein the provisions of the will, and the names of the persons entitled to receive distribution, and also the shares of the estate to which they were respectively entitled. After due notice of the time and place appointed for hearing the same, the court heard the testimony and proof submitted in support of the account, made an order settling the same, and thereupon made an order distributing the estate in accordance with the 1 Rehearing denied January 29, 1901.

terms of the petition. The decree of distribution was entered April 24, 1900. June 20th, Annie J. Shaver and Jacob Shaver, two of the distributees named in the decree, appealed therefrom to this court, bringing as the record here the petition and decree, without any bill of exceptions. The respondents have filed herein copies of certain records and papers on file in the superior court in the matter of the administration of said estate, showing that after the above-named petition was filed, and prior to the day appointed for its hearing, the appellants signed their consent to the settlement and allowance of the account, and to the distribution of the estate in accordance with the prayer of said petition, and that the same was filed in court before the hearing upon the said petition; and that on the next day after the said decree of distribution was entered of record, viz. April 24th, the executor paid and delivered to each of said appellants all of the personal property, and the possession of the real estate distributed to them by said decree, and that their voucher therefor was filed in said court, and that thereupon, on April 25th, the court made an order discharging the said executor from all further duties and responsibilities of his trust as such executor. Upon these facts the respondents have moved for a dismissal of the appeals upon the ground that the appellants, having accepted the provisions of the judgment and voluntarily satisfied the same, were not at liberty thereafter to appeal therefrom.

The right to accept the fruits of a judgment, and the right of appeal therefrom, are not concurrent. On the contrary, they are totally inconsistent. An election to take one of these courses is therefore a renunciation of the other. Bennett v. Van Syckel, 18 N. Y. 484. The precise question involved herein was presented in Re Baby's Estate, 87 Cal. 200, 25 Pac. 405, and upon the motion of the respondents therein the appeal was dismissed, the court saying: "When a judgment has been satisfied it has passed beyond review, for the satisfaction thereof is the last act and end of the proceeding." And upon the authority of that case the motion must be granted.

The appellants have presented herein certain affidavits tending to show that their consent to the settlement of the account and the entry of the decree of distribution was signed by them under certain misapprehension and misinformation of fact, and that they received the property distributed to them and signed their receipt therefor by reason of the same misapprehension. The matters presented in these affidavits cannot, however, be considered upon this motion to dismiss the appeal. Whether they could have been considered upon a motion in the superior court to set aside the decree of distribution need not be determined. If such motion had been made in that court, the affidavits would then have formed a part of its records, and could have been authenticated in a bill of exceptions, and

Code Civ. Proc. §§ 940, 1015, 1011, provide that service of notice of appeal may be made on a party's attorney, if personal, by delivery to him, and, if delivery cannot be made, it may be left at his office during his absence, by leaving the notice with his clerk therein, or with a person in charge thereof, or, if no person is in the office, by leaving the notice between the hours of 8 in the morning and 6 in the afternoon in a conspicuous place in the office, or, if the office is not open, by leaving it at the attorney's residence, in charge of some person of suitable age and discretion. The affidavit of service of such a notice stated that a copy of it was left at the office of the adverse party's attorneys, but did not show whether the attor neys were absent therefrom; whether a clerk or anybody else was in charge thereof; whether the office was open or closed; whether the notice was left in a conspicuous place therein, or at what time in the day it was left. Held, that the affidavit was insufficient to show service of the notice of appeal, since it did not show compliance with the statutory requirements for service, or the existence of conditions authorizing service in the mode adopted, and therefore the appeal should be dismissed.

Department 1. Appeal from superior court, city and county of San Francisco; James M. Seawell, Judge.

Action by Henry Mohr against Kate C. Byrne and others, in which Henry I. Kowalsky intervened. From a judgment in favor of plaintiff, intervener appeals. Dismissed.

W. A. Kirkwood and W. C. Shepard, for appellant. Hepburn Wilkins, Wilson & Wilson, T. J. Crowley, W. H. H. Hart, and Aylett R. Cotton, for respondents.

HARRISON, J. Motion to dismiss the appeal. This action was brought to recover the amount of certain promissory notes executed by the respondent Kate C. Byrne, and held by the plaintiff. A complaint in intervention was filed by Henry I. Kowalsky, in which he claimed an interest in one of said notes. Judgment was rendered in the action in favor of the plaintiff, and against the defendants, and that the intervener, Kowalsky, "take nothing by this action." From this judgment the intervener has taken an appeal.

fendants Kate C. Byrne and John E. Byrne to dismiss the appeal upon the ground, among others, that no notice of the appeal was served upon them.

The only evidence of service of the notice of appeal upon them, or either of them, is contained in an affidavit of Isidore Golden, a clerk of Kowalsky, who states therein that on the 2d day of December, 1898, he prepared typewritten notices of the appeal, and "left a copy at the office of Wilson & Wilson, attorneys for Kate C. Byrne et al." It appears from the record that Wilson & Wilson were the attorneys for the respondents Kate C. Byrne and John E. Byrne. It is not shown that the notice of appeal was ever received by these attorneys.

Sec

Section 940, Code Civ. Proc., requires the notice of appeal to be served "on the adverse party or his attorney"; and section 1015 declares that, "in all cases where a party has an attorney in the action or proceeding, the service of papers when required must be upon the attorney instead of the party." tion 1011 provides that, if the service is personal, it is to be made by a delivery of the notice or other paper to the party or attor ney on whom the service is required to be made. The section, moreover, provides for service in certain instances where such delivery cannot be made, as follows: "If upon an attorney, it may be made during his absence from his office by leaving the notice or other paper with his clerk therein, or with a person having charge thereof; or, when there is no person in the office, by leaving them between the hours of eight in the morning and six in the afternoon, in a conspicuous place in the office; or, if it be not open so as to admit of such service, then by leaving them at the attorney's residence with some person of suitable age and discretion." The affidavit of service must show that all the requirements of the law to effect service have been complied with, and also the existence of the conditions authorizing service in the mode adopted. In the present case the affidavit fails to show whether the attorneys for the respondent were absent from their office, or whether any clerk was present, or anybody in charge of the office, or at what time in the day the copy was left. Neither does it show whether the office was open or closed, and the statement that the affiant left it at the office is consistent with the fact that the office was closed, and that it was left at the outside of the door. If the office was open, the affidavit does not state that the notice was left "in a conspicuous place in the office"; and, as was said in Doll v. Smith, 32 Cal. 476: "For aught that appears to the contrary, it may have been put in the stove or some other place where it was not likely to be found." In that case the statement in the affidavit that the affiant "served the within notice on the plaintiff by leaving a copy of the same at the office of J. G. Doll, plaintiff's attorney,

In the town of Red Bluff, on the 23d day of July, 1866," was held to be insufficient proof of service, and the appeal was dismissed. In Gallardo v. Telegraph Co., 49 Cal. 510, the statement of the affiant that he "left a true copy of the notice at the office of Crane & Boyd, the attorneys for the defendant," was held not to show service of a notice of the settlement of a bill of exceptions. See, also, Dalzell v. Superior Court, 67 Cal. 453, 7 Pac. 910. Under these authorities it must be held that there is no proof of the service of the notice of appeal. The appeal of the intervener, Kowalsky, is dismissed as to the respondents Kate C. Byrne and John E. Byrne.

(131 Cal. 30; 6 Cal. Unrep. 615) PEOPLE ex rel. SILVA v. LEVEE DIST. NO. 6 OF SUTTER COUNTY et al. (Sac. 687.)1

(Supreme Court of California. Dec. 20, 1900.) LEVEE DISTRICTS SPECIAL LAWS-VALIDITY.

1. A levee district was organized under Act March 25, 1868 (St. 1867-68, p. 316), providing a method for the organization of such districts, and, such act being declared void as to the method of organization, the legislature, by Act March 30, 1872 (St. 1871-72, p. 734), recognized the existence of such district. Held, that such legislative recognition gave legal existence to such district, though it was irregularly created, since the legislature, having power to create such districts, on the law under which it was created being held invalid could give it legal existence by positive recognition.

2. Act March 31, 1891 (St. 1891, p. 235), providing a new form of government for a certain levee district, is not violative of Const. art. 11, § 6, and art. 12, § 1, declaring that neither municipal nor private corporations shall be created by special laws, since such levee districts are neither municipal nor private corporations, but are mere governmental agencies having certain of the attributes and functions of corporations.

3. Act March 31, 1891 (St. 1891, p. 235), providing a new form of government for a levee district, does not contravene Const. art. 4, § 25, subd. 3, forbidding the enactment of local or special laws if a general law can be made applicable, since it was a question for the legislature whether a general law was applicable, and its determination of the necessity for a special law will not be interfered with.

Department 2. Appeal from superior court, Sutter county; E. A. Davis, Judge.

Quo warranto, on the relation of John F. Silva, against levee district No. 6 of Sutter county and others. Judgment for defendants, and relator appeals. Affirmed.

Atty. Gen. Ford, Hart & Aram, and Kirby S. Mahon, for appellant. W. H. Carlin and M. E. Sanborn, for respondents.

HENSHAW, J. This is a proceeding in quo warranto to test the legal existence of levee district No. 6. The other defendants are the officers of the district. The case was heard and determined upon an agreed statement of facts, which are the findings in the For opinion in bank, see 63 Pac. 676.

case.

Upon these facts judgment was rendered for defendants, and plaintiff appeals. Levee district No. 6 was organized under the act of March 25, 1868 (St. 1867-68, p. 316). By virtue of that act levee district No. 1 was created, and there was provided a scheme for the organization and government of other levee districts which might thereafter be formed. But section 21 of the act, setting forth the method of organization for such districts, has been declared unconstitutional and void. Moulton v. Park, 64 Cal. 183, 30 Pac. 613; Brandenstein v. Hoke, 101 Cal. 134, 35 Pac. 562. It follows, therefore, and is conceded, that the organization of levee district No. 6, effected under section 21 of the act of March 25, 1868, was irregular and void. Notwithstanding this fatal irregularity in its organization, the legislature made distinct recognition of the existence of the district by an act approved March 30, 1872 (St. 1871–72, p. 734), and again by acts approved March 31, 1891 (St. 1891, p. 235, and St. 1891, p. 237). The first of these acts of recognition was passed under the constitution of 1849, and the latter two under the present constitution. That they are positive acts of recognition sufficient to invest the district with the functions and attributes which it had assumed to exercise under the law of 1868 may not be doubted, under the authority of People v. Reclamation Dist. No. 108, 53 Cal. 346, and Reclamation Dist. No. 108 v. Gray, 95 Cal. 605, 30 Pac. 779, unless it can be said that the legislature itself was without power so to validate the existence of a levee district thus irregularly organized. This is the contention of appellant. But legislative action in such matters is only circumscribed by the express limitations of the constitution. is not questioned but that in the first instance, by direct enactment, the legislature could have carved out levee district No. 6 precisely as it did in the case of levee district No. 1. Where the exercise of a particular power is limited by the constitution, the legislature must act in the mode prescribed. But, where there is no such limitation, if the legislature shall prescribe a mode for its exercise which is, perchance, illegal, it may by subsequent ratification or recognition validate the acts done under the irregular mode. To illustrate, the present constitution forbids the creation of corporations for municipal purposes, except by general law. A special law creating a special municipal corporation would be violative of this constitutional inhibition, and no subsequent act of ratification or recognition by the legislature could validate that which in the first instance it had no power to do. But under the constitution of 1849 corporations for municipal purposes could be created by special law. If, then, the legislature, acting under that constitution. should so by special law create a municipal corporation, and for some reason the law lacked validity, the legislature, having the power thus to create the corporation, could

It