Currigan v. Stone, 17970

• Decision Date: 28 October 1957
• Docket Number: No. 17970,17970
• Citation: 317 P.2d 1044,136 Colo. 326
• Parties: Thomas G. CURRIGAN (substituted for William H. McNichols) as Auditor of the City and County of Denver, a municipal corporation; City and County of Denver, a municipal corporation, Police Pension and Relief Board of the City and County of Denver, and E. O. Geer (substituted for Charles H. Lowen and George T. Shank), Harry Brofman, Harold A. Dill, Maurice A. Pade, and Ivan Eldher, as members thereof, Plaintiffs in Error, v. Lawrence STONE, Jr., Defendant in Error.
• Court: Colorado Supreme Court

Page 1044

317 P.2d 1044

136 Colo. 326

Thomas G. CURRIGAN (substituted for William H. McNichols) as

Auditor of the City and County of Denver, a municipal

corporation; City and County of Denver, a municipal

corporation, Police Pension and Relief Board of the City and

County of Denver, and E. O. Geer (substituted for Charles H.

Lowen and George T. Shank), Harry Brofman, Harold A. Dill, Maurice A. Pade, and Ivan Eldher, as members thereof, Plaintiffs in Error, v. Lawrence STONE, Jr., Defendant in Error.

No. 17970.

Supreme Court of Colorado, En Banc.

Oct. 28, 1957.

Rehearing Denied Nov. 18, 1957.

John C. Banks, Horace N. Hawkins, Jr., Denver, for plaintiffs in error.

Donaldson, Hoffman & Goldstein, Denver, for defendant in error.

HALL, Justice.

Defendant in error was plaintiff below, and we refer to him herein as plaintiff; we refer to plaintiffs in error as defendants or the City.

On March 25, 1955, plaintiff filed his complaint, naming as defendants William H. McNichols, auditor, and Paul L. Sandberg, deputy auditor, of the City and County of Denver. In substance, the complaint alleges that (1) on May 18, 1927, plaintiff was appointed a member of the classified service of the Police Department of Denver and remained in active service until April 16, 1945, at which time, by reason of total disability, arising out of injuries received in the discharge of his duties, he was retired from service on pension, pursuant to the ordinances and charter of the City and County of Denver; (2) that from April 16, 1945, until January 1, 1949, he received pension payments pursuant to the ordinances and charter of the City and that at no time after April 16, 1945, has the Police Pension and Relief Board or any other person or agency having jurisdiction taken any action to reduce, terminate or suspend his pension payments; (3) that at all times pertinent hereto, Section 133 of the Charter of the City provided that the Police Pension and Relief Board should have exclusive control in granting relief and pensions to policemen and that the board's decisions shall be final and that said Section 133 should apply to all members of the Police Department who had been granted pensions prior to June 1, 1947; (4) that the Charter of the City makes it the duty of the auditor to sign, approve and deliver all warrants legally drawn on the Police Pension and Relief Fund and that said auditor has no power to review, reverse or interfere with any order of the board directing payment of relief or pensions from the Fund; that the auditor had refused to sign, approve or deliver warrants prepared for and authorized by the said board to be issued to plaintiff in payment of benefits due plaintiff for the period January 1, 1949, to June 30, 1953; (5) that demand has been made on said auditor to sign, approve and deliver the warrants amounting to over $8,800 and that he has refused so to do. Plaintiff prays that defendants be directed to sign and deliver the warrants or, in lieu thereof, the plaintiff have judgment against the defendants for $8,800, interest, costs and general relief. On April 21, 1955, the parties stipulated that the plaintiff join as parties defendant the City and County of Denver, the Police Pension and Relief Board of said city and the five members of said board, and that plaintiff cause summons to be served upon such parties, and that the caption be amended to show the original and added defendants.

On April 23, 1955, the parties named as defendants in the present caption filed their answer and counterclaims, alleging various matters by way of defense, and set forth several charter provisions and ordinances relied upon to sustain their contentions. They set forth the following matters as defenses:

'1. That the complaint does not state a claim on which relief can be granted.

2. Statutes of Limitations bar plaintiff's right to recover.

3. The plaintiff on January 1, 1949, ceased to be unable to perform his duties as a police officer and became able to support himself and did from January 1, 1949, to June 30, 1953, enjoy public employment other than as a member or officer in the classified service of the Police Department of Denver and for which public employment he was paid and accepted compensation and thereby resigned as a member of the classified service and Denver Police Department and became ineligible for further benefits.

The defendants also set up two counterclaims, as follows:

First: The City demands that the plaintiff pay back to it $627, alleged overpayments of benefits during the period April 16, 1945, the date of plaintiff's injuries, to January 1, 1949, the date the City stopped all payments to plaintiff. These payments were made voluntarily by the City, and the sole basis for seeking their return is predicated on the judgment of this court in McNichols v. Police Protective Association of Denver, 121 Colo. 45, 215 P.2d 303.

Second: The City demands that the plaintiff pay back to it $4,174.99, voluntarily paid to plaintiff during the period July 1, 1953, to August 1, 1955, payments having been made at the rate of $167 per month. Refund is demanded because of the alleged fact that on January 1, 1949, plaintiff ceased to be and was no longer unable to perform his duties as a police officer and became able to support himself and after said date did support himself and accepted and enjoyed public employment other than as a member or officer in the classified service of the Police Department of Denver and for which public employment he was paid and accepted compensation.

The plaintiff filed a motion (a) to strike defendants' answer for the reason that it does not state a defense; (b) to dismiss defendants' first and second counterclaims for the reason that neither states a claim on which relief can be granted. Each of the above motions was granted; the defendants elected to stand upon their answer and counterclaims; whereupon judgment was entered in favor of the plaintiff and against the defendants. Said judgment contains the following:

'It is ordered * * * that defendants sign, approve and deliver to plaintiff all checks * * * withheld * * * or in lieu thereof that the plaintiff do have and recover of and from the defendants Thomas G. Currigan (substituted for William H. McNichols) as auditor of the City and County of Denver, a municipal corporation; City and County of Denver * * *; Police Pension and Relief Board * * *, and E. O. Geer (substituted for Charles J. Lowen and George T. Shank), Harry Brofman, Harold A. Dill, Maurice A. Pade, and Ivan Eldher as members thereof, the sum of eight thousand eight hundred dollars ($8800.00), and interest from June 3, 1953, and together with his costs in this behalf laid out and expended, to be taxed.'

The City, in support of its defense of the statute of limitations, contends that CRS '53, 87-1-11:

'The following actions shall be commenced within six years after the cause of actions shall accrue, and not afterwards:

(1) All actions of debt founded upon any contract or liability in action.'

precludes the plaintiff from making any recovery.

The first installment sought to be recovered herein became due on January 1, 1949; the second on February 1, 1949; the third on March 1, 1949. Suit was filed March 25, 1955, more than six years after the above mentioned three payments became due, more than six years after the three causes of action thereon had accrued. Recovery thereof is barred. On March 25, 1955, less than six years before the fourth payment became due on April 1, 1949, this suit was filed and the statute is no bar to recovery of this fourth and all subsequent payments.

The trial court erred in striking in its entirety the City's plea of the statute of limitations. The plea was a good defense to the recovery of the first three payments only. The plea was not good as to the other payments.

Plaintiff contends that this action is in the nature of mandamus and that the statute of limitations does not apply in mandamus actions. Whether the action is in the nature of mandamus or an action of debt is immaterial insofar as the statute of limitations is concerned.

In 55 C.J.S. Mandamus § 243, p. 457, the general rule is stated:

'* * * Where the general statutes of limitation applicable to ordinary actions are held inapplicable to mandamus proceedings, as discussed in Limitations of Actions § 102, the courts have frequently applied them, by analogy, to mandamus proceedings. While it is difficult to lay down any fixed rule as to the time when the writ will be barred, it may be said in a general way that it must be sought within the period fixed for that...