Buckmaster v. Williams

• Citation: 72 Colo. 593,212 P. 977
• Decision Date: 05 February 1923
• Docket Number: 10564.
• Parties: BUCKMASTER et al. v. WILLIAMS et al.
• Court: Supreme Court of Colorado

212 P. 977

72 Colo. 593

BUCKMASTER et al. v. WILLIAMS et al.

No. 10564.

Supreme Court of Colorado

February 5, 1923

Error to District Court, Morgan County; H. E. Munson, Judge.

Action by A. J. Williams and others suing in the name of the Board of County Commissioners of Washington County against R. M Buckmaster and another. Judgment for plaintiffs, and defendants bring error.

Affirmed.

Issac Pelton, of Akron, and John F. Mail, of Denver, for plaintiffs in error.

Chalkley A. Wilson, of Akron, and J. M. Taylor, of Denver, for defendants in error.

TELLER C.J.

The plaintiffs in error were defendants in an action upon a bond given by Buckmaster as county commissioner, upon which the other plaintiff in error was surety. The plaintiffs had judgment, and the case is now here on writ of error, which we are asked to make a supersedeas. The action is brought under section 1249, R. S. 1908, upon the ground that the commissioner had violated the provisions of the bond, in that he had, while in office, presented bills to the board of county commissioners of the county, and had them allowed and paid for services rendered to the county, outside of his official duties, and for expenditures in behalf of the county. The complaint alleged that the plaintiffs were taxpayers of Washington county, and that they were willing to be responsible for the cost of the suit, as required by the statute to entitle them to sue. The answer was a general denial. The defendants declined to offer any evidence. The case was tried to the court, which found that payments had been made to the defendant Buckmaster to the amount of $681.37, in violation of the statute.

On the argument in the trial court the defendants contended that the plaintiffs had not shown legal capacity to sue. They now contend that the general denial was sufficient to put the plaintiffs upon proof of the allegation that they were taxpayers of the county; the trial court having ruled against them upon that proposition.

As to this question, we find no direct authority in the decisions of this state. The general rule appears to be that, unless the right to sue be put in issue by a special plea, the question is waived. It is in the nature of a dilatory plea which is universally held to be necessary to raise the question. This court has held that matters in abatement must be set up by special plea. Wakeman v. Norton, 24 Colo. 192 49 P. 283; Hukill v. McGinnis, 70 Colo. 455, 202 P. 110.

In 31 Cyc. at page 171, it is said:

'Matters going to the personal capacity or to the ability of plaintiff to sue must ordinarily be presented by plea in abatement.'

And at page 207 it is said:

'The general issue or general denial admits plaintiff's authority and capacity and the character in which he sues.'

In 1 Encyc. Pl. & Pr. p. 827, it is said:

'The general denial does not perform the functions of a plea in abatement.'

And cases are cited to the effect that a general denial does not raise an issue upon the right of the parties to sue where such right is alleged in the complaint. See, also, Wright v. Wright, 54 N.Y. 437; Wade v. State. 37 Ind. 180; Upham v. Bradley, 17 Me. 423; White v. Moses, 11 Cal. 69.

In Society, etc., v. Town of Pawlet, 4 Pet. 480, 7 L.Ed. 927, opinion by Justice Story, it is said that----

'The general issue admits not only the competency of the plaintiffs to sue, but to sue in the particular action which they bring.'

Counsel for plaintiffs in error contend that there is here involved the question of plaintiffs' right to sue, rather than their capacity to sue. This is so only in case we consent to regard a right to sue as synonymous with a right of action. It cannot be so regarded. That there is a right of action in this case in the plaintiffs if they are in fact taxpayers cannot be denied. The question here is have the plaintiffs present capacity to...