Apache County v. Barth

• Decision Date: 16 April 1898
• Docket Number: Civil 584
• Citation: 53 P. 187,6 Ariz. 13
• Parties: APACHE COUNTY, Defendant and Appellant, v. JULIA BARTH, Executrix of the Will of Jacob Barth, Deceased, Plaintiff and Appellee
• Court: Arizona Supreme Court

53 P. 187

6 Ariz. 13

APACHE COUNTY, Defendant and Appellant, v. JULIA BARTH, Executrix of the Will of Jacob Barth, Deceased, Plaintiff and Appellee

Civil No. 584

Supreme Court of Arizona

April 16, 1898

APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Gila. Owen T. Rouse, Judge. Affirmed.

The facts are stated in the opinion.

J. F Wilson, for Appellant.

The court erred in not sustaining defendant's general plea of limitation. Our statute (Rev. Stats., par. 2314) declares that "action for debt, where the indebtedness is evidenced by, or founded upon, any contract in writing executed within this territory, shall be commenced and prosecuted within five years, and not afterwards."

That is this kind of a case, and therefore comes before the sweep of the statute, unless the fact that the defendant, one of the alleged parties to the action, being a county, and therefore an integral part of the state, is excluded from the operation of it.

As the law is, counties, where they deal with individuals, with matter of a private nature as distinguished from public, in which the maxim Nullum tempus occurrit regi is to be found are bound by the statute of limitations the same as individuals, and therefore the same may be pleaded against them, and they also may plead them as defenses against matter barred by them. Cunningham v. Sims, 82 Mo. 587; Houston R.R. Co. v. Travis, 62 Tex. 16; Baker v Johnston, 33 Iowa 151; Caldwell County v Herbert, 68 Tex. 321; County of St. Charles v. Powell, 22 Mo. 525, 66 Am. Dec. 637; City of Alton v. Illinois Transfer Co., 12 Ill. 38; Logan County v. Lincoln, 81 Ill. 156; Ft. Smith v. McKibbin, 41 Ark. 45, 48 Am. Rep. 19; Wheeling v. Campbell, 12 W.Va. 36; Carpenter v. Union Township, 58 Iowa 335, 12 N.W. 280.

The alleged warrants sued on, as appears from their face, were seven years old and over when this action was brought, and therefore, on their face, as a matter of fact, they were barred. This would be so even if they were genuine.

From the face of the warrants, and the declarations made fixing the causes of action founded on them, they were barred as a matter of law, and the court erred in not so holding.

The warrants showed on their face that they were all issued in 1884, indorsed "Not paid for want of funds" in 1884, and not sued on until 1891; and the declaration emphatically charges that the said defendant at all times neglected and refused, and does not neglect and refuse, to provide for the payment, etc.

On the proposition of law that the statement of a plea must always be taken most strongly against the pleader, we insist that, from the statement therein made, -- "that defendant, at all times, neglected and refused, and does now neglect and refuse," to pay, etc., -- the allegation of resistance on the part of the defendant is shown to have been made more than five years before the action was commenced, and therefore it was barred by the statute.

King Iron Bridge Co. v. Otoe County, 124 U.S. 459, 8 S.Ct. 582, is a decision following the ruling of the supreme court of Nebraska, interpreting its own statute, and in which it had held that the statute did not run against county warrants until the money was in the treasury to pay them, or that sufficient time had elapsed to permit the county to collect it.

That case showed the refusal to begin at the bringing of the action. This one shows that the refusal was at all times; and therefore more than five years before the bringing of the action. That being so, -- and the complaint asserts that it is, -- there was no legal reason to await the action of the county board to see if they intended to make arrangements for their payment. This did away with any such probability. It put the moving party, the holder, on knowledge that a defense was waiting for any action that might be brought, that the pretended obligation was resisted, and therefore the setting of the statute in motion began much more than five years before the action was brought. This shows that the Nebraska case is wholly inapplicable to the facts in this case.

Our statute makes the following provision: "Par. 735. Any answer setting up any of the following matters, unless the truth of the pleadings appear of record, shall be verified by affidavit. . . . 8. A denial of the execution by himself, or by his authority, of any instrument of writing upon which any pleading is founded, in whole or in part, and charged to have been executed by him or by his authority, and not alleged to be lost or destroyed."

That is this case. The pleading of plaintiff is founded on the warrant, which is an instrument in writing. It is founded on it altogether -- "in whole." It is not alleged to be lost or destroyed. Its truth does not appear of record. The answer denies the execution of the instrument by the county of Apache, denies that it was ever issued by her authority, alleges that it is not genuine, alleges that it was and is a forgery, which, of course, reasserts that it was not executed by her or by her authority. This answer was sworn to -- "verified by affidavit" -- as provided by statute. Thus the issues were joined in each and every count in the suit.

The plaintiff submitted no evidence other than the pretended warrants themselves, which were put directly in issue by the verified answer of the defendant.

The validity of these instruments being put in issue by the verity of the answer, as provided by the statute, the burden was thrown on plaintiff to show their validity, that they were legally issued, that the necessary steps were taken, beginning with the accounts from which they were alleged to have sprung, before she was entitled to judgment.

The verification of the answer threw the burden of proof on the plaintiff. She was bound to sustain the burden and prove her case. That this kind of answer does put the instrument in issue, see Horn v. Water Co., 13 Cal. 62, 73 Am. Dec. 569; Corcoran v. Doll, 32 Cal. 83; Green on Pleading, sec. 400.

T. W. Johnston and E. M. Sanford, for Appellee.

As to the statute of limitations: These warrants are not within the statute of limitations, -- 1. Because of the character of the obligations; 2. Because the county treasurer became, on the nineteenth day of April, 1888, -- under the testimony, that being the first date after the issuance of the warrants when money was in the county treasury not otherwise appropriated, applicable to, or set apart for the payment of said warrants, -- a trustee for the holder of said warrants.

And further, if there is any statute of limitations of which appellant may avail itself as against these warrants, it certainly did not begin to run until after there was money in its treasury otherwise unappropriated, applicable to the payment of these warrants, -- to wit, April 19, 1888, -- and the statute of five years invoked by appellant will not avail it, because suit was brought within less than five years after 1888, -- to wit, in 1891.

That no statute of limitation runs against these warrants has been clearly decided by at least two cases in the supreme court of the United States.

In Nebraska, under statutes the same in spirit and almost identical in language as those under which these warrants were issued, in the case of Brewer v. Otoe County, 1 Neb. 384, in deciding that these warrants were not subject to the statute of limitations, on page 384 the court said: "Whoever deals with a county and takes in payment of his demand a warrant of the character of these, no time of payment being fixed, does so under an implied agreement that if there be no funds in the treasury out of which it can be satisfied, he will wait until the money can be raised in the ordinary mode of collecting such revenues. He is presumed to act with reference to the actual condition and the laws regulating and controlling the business of the county. He cannot be permitted, immediately upon the receipt of such warrant, to resort to the courts to enforce without regard to the condition of the treasury at the time, on the laws by which the revenues are raised and disbursed."

The same question arose in King Iron Bridge Co. v. County of Otoe, 27 F. 800, in which the federal court held directly the contrary, saying: "When a claim against a county has been audited, and warrants have been drawn on the treasury therefor, and such warrants have been accepted by the creditor, he must present them to the treasury for payment before he can properly sue the county thereon. When presented to the treasurer for payment, and payment is refused, the right to sue becomes complete and absolute, and the lawful holder of the warrants can then proceed to have his claim reduced to judgment."

However, this latter case was appealed to the supreme court of the United States, and upon the final decision of it upon the merits (124 U.S. 514, 8 S.Ct. 590), after approving the Nebraska decision, the court said: "According to the rule established in Brewer v. Otoe County, the cause of action did not accrue when the payment was refused, but only when the money for its payment was collected, or time sufficient for the collection of the money has elapsed."

Again the holder of the warrant having dealt with the county, with the knowledge of the statutes above quoted under which these warrants were issued, which provide the methods and order of their payment, that statute becomes a part of his contract, which he could not enforce by a suit until the money was raised for the payment thereof, and the supreme court of the United States, in the case of Chapman v. Douglas County, 107 U.S. 348, 2 S.Ct. 62, said: "But the more satisfactory answer to this defense is, that none of the statutes of limitation referred to apply to the...