# Lawrence v. Doolan

> California Supreme Court · December 28, 1885 · 68 Cal. 309

URL: https://www.frixlaw.com/law-library/cases/5442378

## Case

- **Full name:** ELIZA P. LAWRENCE v. WILLIAM DOOLAN, Administrator, etc., oe Alexander Austin
- **Court:** California Supreme Court
- **Decided:** December 28, 1885
- **Citations:** 68 Cal. 309; 9 P. 159; 1885 Cal. LEXIS 813
- **Precedential status:** Published
- **Opinion:** Concurrence
- **Judges:** Foote
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5442378

## Opinion text

The Court.
— For the reasons given in the foregoing opinion, judgment reversed and cause remanded, with direction to overrule the demurrer, with leave to defendants to answer.
The following is the opinion of Department Two above referred to, rendered on the 10th of January, 1885:—
Myrick, J. — This action was brought against the administrator of Austin, deceased, late tax collector of the city and county of San Francisco, and the sureties on his official bond. The defendants (sureties) severally demurred to the amended complaint; the demurrers were sustained, on the ground that the complaint did not state facts sufficient to show a cause of action against said sureties. The facts stated in the complaint are, in substance, that plaintiff, claiming to be the owner of certain outside lands of said city and county, caused the same to be delineated on the “Outside Land Map,” under section 4 of order No. 800, and paid $609 dollars to the *315 said Austin as tax collector, taking his receipt therefor; that a suit then pending between plaintiff and other claimants terminated against plaintiff, and the other claimants were adjudged to be the owners of the lands; and that by leave of the board of supervisors she was permitted to withdraw her protest and the receipt. Austin subsequently died without having paid the money to the city and county treasurer. The defendant Doolan was appointed administrator of the estate of Austin, and in due time the plaintiff presented a claim against said estate, which claim was disallowed; plaintiff thereupon brought suit against said administrator and the defendants herein, and summons was served, and such proceedings were had that, after the commencement of this suit, but before the filing of the amended complaint, judgment was rendered against said administrator.
1. The point is presented that there is a misjoinder of parties defendant, in that the administrator of Austin’s estate is joined with the sureties on the official bond of Austin. It has been held in some cases that the representative of a deceased obligor cannot be joined with the co-obligors in an action on a bond, on the ground that one is charged de bonis testatoris, and the other de bonis propriis, and the judgment against the one would be different from that against the other. That reason does not prevail under the practice in this state, as the court is by the code authorized to render such judgment as will give effectual relief. The statute requires that before an administrator can be sued on an obligation arising in the lifetime of the deceased, a claim should be presented; after presentation and disallowance, suit may be brought against the representative as such, but the judgment, as against him, must be that the amount be paid in due course of administration. That does not prevent the rendering of a proper judgment against surviving coobligors.
*316 2. It is urged that two causes of action are improperly joined, viz., an action against the administrator to establish a claim, and against the sureties on his official bond. The point is not well taken. What is said above as to the first point will apply here.
3. It is claimed that as it was the duty of the tax collector to turn over to the treasurer all moneys lawfully received by him as such (the plaintiff in such case to have recourse upon the city and county treasury), his sureties are not responsible for moneys so received by him but not turned over. As the tax collector received the money in his official capacity (giving his receipt therefor), and did not pay it over, we apprehend that the sureties are not in a position to avail themselves of his failure to pay over. If it was his duty to pay over, his paying over would, of course, relieve his sureties: would his failure to pay also relieve his sureties? We think not.
4. As to the statute of limitations: although plaintiff paid the money to the tax collector in 1870, yet not until February, 1878, was the suit of Lawrence v. Ballou (the suit involving the rights of the respective claimants to the lands) finally disposed of; not until September, 1878, had she leave to withdraw her protest and receipt; and this action was commenced January 14, 1880, clearly within the proper time as to either of those dates. The statute of limitations did not commence to run until plaintiff had a right to have her money, which -was not before February, 1878. If she had sued before that date, she must have gone out of court, as being premature.
Judgment reversed and cause remanded, with directions to overrule the demurrers, with leave to answer.
• Rehearing denied.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5442378. Public record. Not legal advice.