Bodman v. Johnson County

88 N.W. 331, 115 Iowa 296

• Court: Supreme Court of Iowa
• Decided: December 21, 1901
• Status: Published

Opinion

McClain, J.

1 2 Plaintiff alleg'es in his petition that' at no time since these warrants were presented for payment has there been any fund in the county treasury from which they could have been paid, but further alleges that there is an excess of such fund in Muscatine county, through a portion of which the ditch rjins, which the defendant county might have had transferred to it, and from which these warrants might be paid. It was decided in the case of Mills County Nat. Bank v. Mills Co., 67 Iowa, 697, that action on such warrants may be maintained without regard to the existence of assets in the fund from which they are payable, and that the holder of the warrants is not justified in waiting for the county to take proceedings to collect the money due to the fund, but may have his judgment, and afterwards take steps for its enforcement. That case seems to be exactly in point here. But appellant calls attention to Wetmore v. Monona Gounty, 73 Iowa, 88, in which it was said that a cause of action on a warrant payable “out of any swamp land money not otherwise appropriated” only commenced to run when there was swamp money in the treasury from which the warrant might be paid. We think the distinction between the cases" is that in the latter the county had no means of raising the fund out of which the warrant could be satisfied, and therefore was not in default in payment until there was money on hand, while in the case of the ditch fund there is authority for making additional assessments until the expenses payable out of the-fund are satisfied (see Code, section- 1950). Therefore it was the duty of the county to raise the necessary funds, and plaintiff was not justified in postponing the bringing of his-action until such funds were actually on hand. The duty imposed on the county treasurer to issue calls for outstanding warrants when he has sufficient funds-on hand with which to pay-such warrants (Code, section 484) is one imposed for the protection of the county against tho accruing of further interest on outstanding warrants, and does not authorize the holder of a warrant to postpone the bringing of his action in reliance on the failure of the treasurer to' give such notice. — Affirmed.