Flanders v. Kochenberger

• Decision Date: 19 April 1948
• Docket Number: 15825.
• Parties: FLANDERS v. KOCHENBERGER et al.
• Court: Colorado Supreme Court

193 P.2d 281

118 Colo. 104

FLANDERS v. KOCHENBERGER et al.

No. 15825.

Supreme Court of Colorado, en Banc.

April 19, 1948

Error to District Court, Pueblo County; Raymond L. Sauter, Judge.

Taxpayer's derivative action by Milo J. Flanders against Austin G Kochenberger as clerk and recorder of Pueblo County and the Board of County Commissioners of the County of Pueblo, to compel defendant Kochenberger to account to the Board for fees of his office and for other relief. To review the judgment, plaintiff brings error.

Reversed and remanded.

HILLIARD J., dissenting.

John W Elwell and Matt J. Kikel, both of Pueblo, for plaintiff in error.

Laurence E. Langdon and A. T. Stewart, both of Pueblo, for defendant in error Austin G. Kochenberger.

ALTER Justice.

Milo J. Flanders, plaintiff in error, plaintiff below, instituted a derivative action against Austin G. Kochenberger as clerk and recorder of Pueblo county and the Board of County Commissioners of the county to compel Kochenberger to account to the board for fees, perquisites, commissions and emoluments of his office and for judgment for the amount found to be due; for the removal of Kochenberger from office, and other relief. Upon trial to the court, defendants' motion for summary judgment was granted, and the action dismissed at plaintiff's costs.

In his amended complaint plaintiff alleged that Kochenberger is the duly elected, qualified and acting clerk and recorder of Pueblo county, Colorado, and has served as such officer since January, 1933; that upon demand the Board of County Commissioners has refused to institute any action against defendant Kochenberger; that plaintiff is a taxpayer in Pueblo county; that his property has been assessed and that he has paid taxes thereon; that by reason of the acts of defendant Kochenberger of which complaint is made, plaintiff's taxes have been, and will be, increased; that 'he brings this action on behalf of himself and all others who are similarly situated and interosted, for the use and benefit of Pueblo county and the taxpayers thereof.'

He further alleges:

'The defendant, Austin G. Kochenberger, as Clerk and Recorder of Pueblo County, has collected for the use and benefit of Pueblo County, fees, perquisites, commissions and emoluments of his office of county clerk pertaining to the issuance of certificates of title to motor vehicles, motor vehicle operators' licenses, chauffeurs' licenses and for the collection of specific ownership taxes on motor vehicles during all of his tenure of office. Said fees, commissions, perquisites and emoluments amounting in the aggregate to two hundred sixty-five thousand eight hundred sixty-one dollars and sixty cents ($265,861.60). During all of his term of office the salary of said defendant Austin G. Kochenberger, as Clerk and Recorder of Pueblo County, has been paid by the defendant, The Board of County Commissioners of the County of Pueblo, and the fees, perquisites, commissions and emoluments aforementioned are over and above the amount of the salary of said defendant, Austin G. Kochenberger, as Clerk and Recorder of Pueblo County.

'During all of his tenure of office, said defendant, Austin G. Kochenberger, as Clerk and Recorder of Pueblo County, has failed to make a monthly sworn statement and to pay over to the county treasurer of Pueblo County all fees, perquisites, commissions and emoluments of his office as provided by law (Vol. 2 C.S.A. '35, Chap. 45, sec. 180) and has failed and neglected to make a written report of said fees, perquisites, commissions and emoluments to the chairman of the board of county commissioners of Pueblo County as provided by law (Vol. 3 C.S.A. '35 Chap. 66, Sec. 39) and has failed and neglected to pay said fees, perquisites, commissions and emoluments to the County treasurer as provided by law. (Vol 3 C.S.A. '35 Chap. 66, Sec. 43[38] and Vol. 2 C.S.A. '35 Chap. 16, Secs. 93 and 94 as amended Laws of '37 and Laws of '41) Said defendant, Austin G. Kochenberger, as Clerk and Recorder of Pueblo County has unlawfully and illegally appropriated said fees, perquisites, commissions and emoluments or a portion thereof to his own use.'

Defendant Kochenberger filed his answer in which he admitted his official capacity and denied each and every other allegation in said complaint contained. Further answering, he alleged the collection of the fees enumerated in the quoted portion of the complaint herein, but denied that funds resulting from said collections were 'perquisites, commissions or emoluments of the defendant as clerk and recorder, or as an individual.' He further alleged that the sums collected for the services alleged in the complaint had 'been accounted for and distributed as provided by law.'

Subsequently, and on the day Before the trial, defendant tendered an amended answer in which, as a first defense, he alleged that the 'amended complaint fails to state a claim against defendant upon which relief can be granted;' a second defense being a general denial; and in a third defense he pleaded the six year statute of limitations.

Plaintiff moved to strike the plea of the statute of limitations, which motion was denied. The motion of the Board of County Commissioners to dismiss the action as to said board was granted, and plaintiff does not specify error on this ruling.

Subsequently defendant Kochenberger moved for summary judgment upon the ground that there was no 'real issue tendered by the amended complaint of plaintiff.' The pertinent part of said motion is as follows:

'That there is no real issue tendered by the amended complaint of the plaintiff for the reason that the said complaint alleges that the said defendant has failed to make a monthly sworn statement and pay over to the County Treasurer fees, perquisites, commissions and emoluments of his office collected for the use and benefit of Pueblo County pertaining to the issuance of certificates of title to motor vehicles, motor vehicle operators' licenses, chauffeurs' licenses, and for the collection of specific ownership taxes on motor vehicles, and that by reason of such failure, he has appropriated said fees, perquisites, commissions and emoluments, or a portion thereof, to his own use.

'That in truth and fact, under the provisions of the statute providing for the collection of fees for said purposes, the sums so collected are not fees, perquisites, commissions or emoluments of the defendant, as county clerk and recorder, or individually, but the express provisions of such statutes are for the purpose of paying the expenses of clerk hire and other expenses of the administration of the motor vehicle Department of said county clerk's office.

'Further, said defendant represents and shows to the court that the attorney for plaintiff has openly stated that he cannot prove, and does not expect to prove, that either the County of Pueblo, or the State of Colorado, has lost any money whatsoever on account of the matters and things in said complaint alleged.

'That the plaintiff herein claims and purports to have brought this action and to be prosecuting the same as a taxpayer, whereas, by reason of the facts aforesaid and the admissions of the attorney for plaintiff, said plaintiff is not qualified to maintain this action in that it is impossible for him to establish any injury as a taxpayer.

'Said defendant offers in support of this motion his affidavit to the effect that all moneys collected by him on account of the matters and things aforesaid have been accounted for, paid over, expended and distributed in accordance with the provisions of the statutes in such case made and provided, and that any balance over and above the amounts expended for clerk hire and other expenses of administration of the provisions of the applicable statutes by him, as agent of the Motor Vehicle Department of the State, or the Secretary of State, and the portion of said excess deposited with the County Treasurer is in his custody and control and are ready to be paid over to the County Treasurer if this court shall decide that the proper construction of said statutes requires such payment, and said defendant offers to prove by competent witnesses the statement attributed herein to the attorney for plaintiff.'

This motion for summary judgment was granted by the court, and the cause dismissed.

There are two specifications of points: First, 'The court erred in overruling plaintiff's motion to strike the plea of the statute of limitations;' and, second, 'The court erred in sustaining defendant's motion for summary judgment.' These will be discussed in this order.

In Owers v. Olathe Silver Mining Co., 6 Colo.App. 1, 39 P. 980, and in Curtis v. City of Pueblo, 11 Colo.App. 446, 54 P. 649, our Court of Appeals held that the statute of limitations might not be pleaded by an amendment to the answer after the issues have been made up. The rule announced in these decisions has been modified by Rule 15(a), R.C.P. Colo., and by our holdings in Walters v. Webster, 52 Colo. 549, 123 P. 952, Ann.Cas.1914A, 23; Maryland Casualty Co. v. City and County of Denver, 90 Colo. 20, 6 P.2d 6, and many other decisions announced by us.

In Maryland Casualty Co. v. City and County of Denver, supra, after issue joined, an amended answer setting forth as a special defense the statute of limitations was tendered, and, by order of court, permitted to be filed. Plaintiff moved to strike the amended answer, which was denied. Passing upon this point we said: 'After issues joined and a cause has been set for trial, a court may in the exercise of reasonable discretion and in the interest of justice permit the filing of an amended answer pleading additional defenses [citing authorities].'

There was no error...