City of Pueblo v. Dye

• Decision Date: 06 July 1908
• Citation: 44 Colo. 35,96 P. 969
• Parties: CITY OF PUEBLO et al. v. DYE.
• Court: Colorado Supreme Court

96 P. 969

44 Colo. 35

CITY OF PUEBLO et al. v. DYE.

Supreme Court of Colorado

July 6, 1908

Appeal from Pueblo County Court; L. B. Gibson, Judge.

Action by Joe Dye against the city of Pueblo and its board of park commissioners. From a judgment against the city and dismissing the action as to the park board, the city appeals. Reversed.

This is an action against the board of park commissioners of district No. 1 of the city of Pueblo and the city itself, by Joe Dye assignee of Johnston & Kingsley of part of an entire claim which that firm asserted against the park board for repairs and improvements which they say they made under a contract with the board upon the mineral palace, a public building in Mineral Palace Park. The action was dismissed as to the park board, and judgment went against the city for the amount of the claim.

James A. Park and J. T. McCorkle, for appellant.

CAMPBELL, J. (after stating the facts as above).

1. The first objection to the judgment of the county court, the same being rendered upon an appeal from a justice of the peace, is that jurisdiction of the subject-matter was lacking because an action does not lie in the court of a justice of the peace in this state against a municipal corporation. The particular and main objection is that as a judgment against a municipal corporation cannot be enforced by execution, but only by an action in mandamus, and as the justice had not jurisdiction to issue a writ of mandamus, his jurisdiction to enter a judgment which he cannot enforce by execution is altogether lacking, and, if the justice had no jurisdiction, taking an appeal did not vest it in the county court. To this are cited Riggs v Johnson County, 6 Wall. 166, 187, 18 L.Ed. 768, and various provisions of our statute defining the jurisdiction of justices of the peace and decisions of our court on that subject. Were it not for defendant's conduct at the trial, this objection would raise an important question which we would be obliged to pass upon. Downing v. Florer, 4 Colo 209. The defendant successfully interposed the objection in the justice's court and unsuccessfully on the appeal in the county court before trial began. Had it rested its case there, it could now press the point; but, after the county court overruled its motion to dismiss for lack of jurisdiction, defendant asked for a continuance, and later and without objection entered upon the trial. At the close of plaintiff's evidence, and again after its own evidence was in, defendant asked the court to instruct the jury to return a verdict, and the court to enter judgment on it, in favor of plaintiff for $48.70, the amount which it had tendered to plaintiff before trial and kept good in court. Unquestionably the county court would have had jurisdiction of the subject-matter had the action originally been brought therein. Hence this voluntary submission by the defendant to its jurisdiction by going to trial and offering to confess judgment operated to vest or revest jurisdiction in that tribunal, notwithstanding the earlier objection thereto. Denver, S. P. & P. R. R. Co. v. Roberts, 6 Colo 333; Lyon v. Washburn, 3 Colo. 201; Edwards v. Smith, 16 Colo. 529, 27 P. 809; Christ v. Flannagan, 23 Colo. 140, 46 P. 683. This, however, does not preclude defendant from objecting on other grounds to the different judgment which was actually rendered, and we therefore pass to a consideration of some of the more important ones, though there are others which require a reversal.

2. Under the provisions of the act of the General Assembly (Sess. Laws 1897, p. 275, c. 77), a board of park commissioners was appointed by the city council of the city of Pueblo. To this board the statute gives full, complete and exclusive authority to expend for and on behalf of the city all money realized from the sale of park bonds or from special assessments or appropriations made from the general revenues by the city council for park purposes. For such expenditures the park board must issue its vouchers and certify the same to the city council before payment can be made by the city. No member of the board has any authority to act in its behalf, except in pursuance of an order regularly made at a meeting of the board, and no action of the board is binding unless authorized by a majority of its members at a regular, or a duly called special, meeting. The claim here sued upon, which constitutes part of an entire claim which the firm of Johnston & Kingsley assert against the park board, was, they say, for services which they performed on the mineral palace under contract. No contract, in the first instance, was made by the board as a body or by any individual member. The work seems to have been done by this firm on the supposition that they had made a contract with a member of the board or its superintendent. After the work was done, the...