Summary
APPEAL from Izard County.
Hon. J. L. Abernethy, Special Judge.
‘ ‘ An action for moneys fraudulently obtained, although ■at different times, and by divers frauds, is held to embrace hut one cause of action.” Bliss on Code Pleading, Bee. 118.
The County Court, when engaged in,passing upon claims presented before it, acts merely as the financial agent of the county, and, by such proceedings, it can create no estoppel. Shirk v. Pulaski County,, 4 Dillon, 209 ; Campbell v. Polk, 3 Iowa, 467; Washington County v. Parlier, 10 Ms. (5 Gill.), 232.
The allowances were illegal. Bee. 604, Gantt’s Digest; Pee Bill, 1875, Dec. 7; See. 2847, Gantt’s Digest.
STATEMENT.
This action was brought in the Circuit Court of Izard county, in the name of the State for the use of Izard county, against John M. Hinkle, late sheriff thereof.
The object of the suit was to recover of Hinkle the aggregate amount of certain fees, which had been paidf him as sheriff, by issuing warrants upon the county treasurer, under orders of allowance, made at different times by the County-■Court, and which, it was alleged, he was not, by law, •entitled to.
In the complaint, as originally filed, there were nine Code paragraphs, each one setting out the items in an account claimed to have been improperly allowed Hinkle, making, in all of the accounts, twenty-four items — amounting to $355.70, for which judgment was prayed.
I.. In the first paragraph it was alleged, in substance,, that Hinkle, on the fifth of January, 1875, filed with the county clerk an account for services claimed to have been rendered by him as sheriff, amounting to $190.10, in which the following items, not allowed by law, were charged against said county :
1. Summons alt. petit jury, November term......$ 7 50
2. “ grand “ “ “ ...... 7 50
3. Mileage, summoning juries.................. 12 OO
4. Waiting on grand jury, per Wm. Jones, bailiff, five days............................... 15 00'
5. Opening and adjourning court, Nov. term..... 2 25-
6. Cash paid for lodging of three guards and four horses. ................................. 3 50
7. To J. Hinkle for lodging guards.............. 3 75
The above items, the complaint alleged, amounting to $51.50, being other fees than were allowed by law, were charged, demanded and received by defendant from said county.
II. In the second paragraph it was alleged, in substance,, that defendant, on the sixth of April, 1876, filed with the clerk an account for services, claimed by him to have been rendered as sheriff, amounting to $55.75, in which the following item, not allowed by law, was charged and received by him:.
8. To advertising collector’s notices in fourteen townships, $2...........................$28 00'
III. The third paragraph alleged, in substance, that, on the fourth of October, 1876, defendant filed with the clerk an account for services claimed to have been rendered by him as sheriff, for $123.50, in which the following item was charged:
9. To delivering notice to forty judges of election, at seventy-five cents each. ................$30 00>
And it was' alleged that the poll-books were notices to the judges, for which the defendant was entitled to $2.00, and that the above item was not allowed by law, but that the defendant charged, demanded and received it from said county.
IV. In the fourth paragraph it was alleged, in substance, that on the third of January, 1877, defendant filed with the clerk an account for $205.86, for services claimed to have been rendered by him as sheriff, in which the following items, not allowed by law, were charged:
10. — 11. To mileage; summons grand and petit jury...................................' .$12 00
12. Waiting on grand jury by S. R. Smith, six days, 18 00
13. Summoning witnesses before the grand jury.. 41 60
Which said amount of fifty-eight dollars and ten cents (as is alleged), so charged as aforesaid, was afterwards demanded and received by defendant from said county.
V. In the fifth paragraph it was alleged, in substance, that on the twenty-ninth of March, 1877, defendant filed with the clerk an account for $142.75, in which the following item, not allowed by law, was charged against said county:
14. Posting up collector’s notices in eleven townships...................................$22 00
Which sum of $22 defendant afterwards received from said county, and was ordered by the County Court to refund the same, but had failed to do so.
VI. In the sixth paragraph it was alleged, in substance, that on the sixteenth of July, 1877, defendant filed with the clerk an account for $169.75, in which the following items, not allowed by law, were charged against said county:
15. To mileage summoning grand and petit jury. .$12 00
15a. To summoning twenty-four witnesses before the grand jury, excess for mileage............. 40 75
16. To J. F. Landers, as bailiff of grand jury, six days, $3.00.'........................... 18 00
17. Services of John Kerr at Circuit Court....... 2 00
18. Services of J. D. Simpson as deputy sheriff, four days, at $3.00...................... 12 00
Which, amounting to $74.75, so charged, defendant after-wards received from said county.
VII. In the seventh paragraph it was alleged, in substance, that on the eighth of January, 1878, defendant filed with the cleric an account for services claimed to have been rendered by him as sheriff, for $108.95, in which the following items, not allowed by law, were charged:
19. To mileage, summoning grand and petit jury. $11 50
20. S. R. Smith, as bailiff of grand jury, six days, three dollars............................ 18 00
Which, amounting to $28.50, so charged, was afterwards received by defendant of said county.
VIII. In the eighth paragraph it was alleged, in substance, that defendant, on the first of July, 1878, filed with the clerk an account for $119.65, in which the following items, not allowed by law, were charged :
21. To mileage, summoning juries. ............ $12 00 .
22. Serving twelve subpoenas for witnesses before the grand jury.......................... 24 55
23. Service of bailiff- for grand jury, six days, three dollars............................ 18 00
Which, amounting to $48.55, so charged, was afterwards received by defendant of said county.
IX.In the ninth paragraph it was alleged, in substance, that on the ninth of October, 1878, defendant filed with the clerk an account for services, in which was the following item-:.
24. To serving notices on thirty-three judges of election, at seventy-five cents each......... $24 75
And it was alleged that delivering the poll books was notice to the judges of election, for which defendant was allowed a fee of $2, and that said charge of $24.75, though for fees not allowed by law, was afterwards received by defendant of said county.
The complaint concluded by alleging that the above facts would appear by the original accounts on file in the office of the county clerk, and that defendant having therein charged and received from the county the twenty-four items above specified, and not allowed by law, amounting in the aggregate to.$355.70, an action had accrued to the plaintiff for the same, etc.
The defendant filed a motion to require the plaintiff to make the complaint more specific, which was sustained by the court, and thereupon plaiutiff filed an mendment to the complaint, in substance, as follows :
That the several and various accounts or demands which plaintiff charged defendant with having filed with the clerk against said-county, as stated in the original complaint, were duly and regularly presented to the County Court, in term time, and the several items therein charged were allowed by said court, and an order made and entered of record by the court that the clerk issue his warrants upon the treasurer of the county for the payment of the same; and. that afterwards defendant ■ received said several warrants from the clerk for the said sums so ordered by the court to be paid.
That said accounts were presented to, and allowed by, ¡the County Court at the several terms of the court held immediately following the filing of said claims with the-clerk as aforesaid, and that said claims were allowed by the court under a misapprehension of the law governing the fees of officers at the time said allowances were made.
That the account referred to in the fifth paragraph of the original complaint, embracing the following item, number 14, to-wit: “Posting up collectors’ notices in eleven townships, $22.00,” was allowed by the court at the April term, 1877, and the warrant therefor was issued to defendant by the clerk ; and during the same term the court, after having notified defendant that said item of $22.00 was illegal, rescinded said order of allowance as to said item of $22.00, and made an order requiring said defendant to return into court so much «of said warrant or scrip as amounted to the said $22.00, which order said defendant refused to obey and comply with, and still refuses so to do.
That item, No. 13, in the account referred to in paragraph IY. of the original complaint — “Summoning wit ness before the grand jury, $41.60” — was composed of of the following specified items, as stated in said account, to-wit:
Serving eight grand jury subpoenas............. $ 6 601
‘ “ J. F. Landers. 1 30' one
‘ “ Montgomery.. 1 25
‘ “ E. Gr. Landers. 1 35 Í ( < C
‘ “ J. H. Miller.. 9 00 three 6 i
‘ “ A. L. Sablett.. 11 50 five
‘ “ Gr. R. Landers. 10 60 eight
Which sums, so charged, it was alleged, were in the-aggregate $28.10 in excess of the fees allowed by law for such services.
That the sum of $40.75, as stated as cause of action in paragraph. VI. of the original complaint, item No. 15a; was composed of the following specified items, as stated in the account referred to in said paragraph, to-wit r “To serving twenty-four grand jury subpoenas by deputies, $52.75,” which sum was $40.75 in excess of the fees allowed by law for such services.
That item No. 22, paragraph VIII. of the original complaint, to-wit: “To serving twelve subpoenas for witnesses before grand jury, $24.55,” was $18.55 in excess of the fees allowed by law for such services.
Defendant demurred to each paragraph of the complaint as amended, on the following grounds:
1. That the court had no jurisdiction of the several and separate causes of action set forth in the several paragraphs of the complaint, or any one of them.
2. That said several and separate paragraphs, nor any one of them, stated facts sufficient to constitute a cause of action against defendant.
The court sustained the first cause of demurrer as to the fifth paragraph,, and the second cause of demurrer as to-each of the other paragraphs; and the plaintiff resting,, the complaint was dismissed at plaintiff’s cost.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
