Spinning v. County of Pierce ( 1898 )

The opinion of the court was delivered by

Scott, C. J.

The plaintiff brought this action to recover from the county upon a number of assigned claims for money paid into its treasury by the sheriff, the same having been, demanded and received as a commission on sales which, under the subsequent ruling of this court in Soderberg v. King Bounty, 15 Wash. 194 (45 Pac. 785, 55 Am. St. Rep. 878), were not lawful charges. The court sustained a demurrer to each cause of action pleaded, except the second, and, as to that, awarded the plaintiff judgment, and both parties have appealed.

The demurrer was sustained as to the causes of action other than the second, upon the ground that the statute of limitations had -run against them. The plaintiff contends that the statute would not run from the time the money was paid to the county, hut only from the time that a demand was made therefor, and, if this were so, the statute had not run. His counsel concede that there is much authority against this contention, but contend that the cases so holding are not well founded in principle. We shall not attempt a review of the learned argument presented by the plaintiff, nor of the authorities cited by him; but as the contrary view is so well sustained, and as it accords with generally accepted ideas of justice that the statute should run in such cases rather than that they should continue indefinitely, after an examination of the authorities cited by the defendant, we are satisfied to follow them, and shall do so without any discussion as to their logical application of legal principles in deciding the matter. Atchison, etc., R. R. Co. v. Burlingame Township, 36 Kan. 628 (14 Pac. 271, 59 Am. Rep. 578); Morrison’s Admr. v. Mullin, 34 Pa. St. 12; Pittsburg & C. R. R. Co. v. Byers, 32 Pa. St. 22 (72 Am. Dec. 770); Codman v. Rogers, 10 Pick. 112; Palmer v. Palmer, 36 Mich. 487 (24 Am. Rep. 605); Prescott v. Gonser, 34 Iowa, 175; Beecher v. Clay County, 52 Iowa, 140 (2 N. W. 1037); Callanan v. County of Madison, 45 Iowa, 561; Lower v. Miller, 66 Iowa, 408 (23 N. W. 897); Wheeler v. Warner, 47 N. Y. 519 (7 Am. Rep. 478); Nelson v. Posey County, 105 Ind. 28 (4 N. E. 703); Litchfield v. McDonald, 35 Minn. 167 (28 N. W. 191); Schriber v. Town of Richmond, 73 Wis. 5 (40 N. W. 644).

As to the second cause of action, the sale was made upon a judgment for something over $3,000, and the sum realized was $500, of which $490 was credited upon the judgment and $10 applied as a commission. The plaintiff’s right of action here is based upon an assignment from the plaintiffs having the judgment in that action; and we are of the opinion that they had nothing to assign, for, if the $10 was wrongly applied, it should have been credited on the judgment; otherwise, if the plaintiffs’ assignee should recover, their judgment against the defendants in the action in which the sale was had would remain intact, less the sum of $490, and there might he a double recovery of the amount applied as a commission.

As to plaintiff’s appeal the judgment is affirmed. As to the defendant’s appeal it is reversed, and the cause remanded accordingly.

Keavis, Anders and Gordon, JJ., concur.

Dunbar, J., not sitting.