Greeley v. Cascade County

• Citation: 57 P. 274,22 Mont. 580
• Parties: GREELEY v. CASCADE COUNTY.
• Decision Date: 29 May 1899
• Court: Montana Supreme Court

57 P. 274

22 Mont. 580

GREELEY v. CASCADE COUNTY.

Supreme Court of Montana

May 29, 1899

Appeal from district court, Cascade county; Dudley Du Bose, Judge.

Action by James Greeley against Cascade county. From a judgment for defendant, and an order denying a motion for new trial plaintiff appeals. Affirmed.

Thos E. Brady, for appellant.

C. B Nolan, for respondent.

PIGOTT J.

The plaintiff sued Cascade county upon two alleged causes of action. The subject of the first cause of action is a county warrant, of which the following is a copy: "No. 399. Great Falls, Cascade County, M. T., June 14th, 1893. The treasurer of Cascade county will pay to James Greeley, or order, eleven hundred forty-three and 61/100 dollars for keeping poor, etc., out of any moneys in the treasury belonging to the poor fund. S.

N. Dickey, Chairman Board of County Commissioners. Howard Crosby, County Clerk. Seal." It is alleged that the warrant was drawn for a duly audited and allowed claim of the plaintiff; that there was then to the credit of the poor fund a sum of money more than sufficient in amount to pay the warrant and all other warrants issued theretofore upon said fund, and that such funds were in cash and were in the hands of the treasurer; that the warrant was duly presented to the treasurer for payment; that the treasurer took up the warrant, and stamped it as paid, but that, instead of paying the money called for by it, the treasurer delivered to plaintiff a check, signed by himself as treasurer of Cascade county, upon a bank which was then insolvent; that upon presentation to the bank upon which it was drawn the check was dishonored, and plaintiff has been unable t o recover any money thereon; that soon after the suspension of the bank the defendant made and filed a claim to all the moneys deposited to the credit of the treasurer in said bank, and that defendant has collected and retained, and passed to its credit, all dividends paid by the bank, or its receiver, upon the entire deposit; and that the defendant has wholly refused and neglected to pay plaintiff any part of said moneys due him upon said warrant, but has retained the whole thereof. Plaintiff further alleges that he is still the owner of the warrant and the holder of the check given as a substitute therefor. The defendant, by answer, admits that the claim of the plaintiff was allowed, and the warrant drawn, as stated; that the treasurer received the same, and gave a check upon the bank for the amount, but alleges that the check was good on the 15th day of June, 1893, when plaintiff received it, and denies that the bank was insolvent at that time, but was solvent until the 24th day of July, 1893, when it closed its doors, and that the bank was willing and ready at all times until its suspension to pay the check, and that by the neglect of plaintiff to present the check the defendant lost the sum of money for which it was drawn. The other defenses set up by the answer to the first cause of action are not necessary to be stated. The second cause of action is based upon a contract alleged to have been entered into between plaintiff and the defendant. Upon this cause of action plaintiff sought to recover $540. Among the defenses pleaded to this cause of action is the statute of limitations, the defendant averring that on March 13, 1894, the county auditor and the board of county commissioners of Cascade county duly rejected and disallowed the account and itemized statement upon which the second cause of action is based, and that since the date of the disallowance no action has been commenced on said account, except the one at bar, and defendant alleges that the second cause of action is barred by the statute of limitations, by virtue of section 517 of the Code of Civil Procedure. Defendant further pleads that plaintiff has never appealed from the decision of the board of county commissioners in disallowing the account. Trial was had by the court. The evidence established, among other things, that the check delivered to the plaintiff by the treasurer was held by plaintiff from June 15th until the bank closed on July 24th, and was never presented while the bank was open, and that the county, through its treasurer, laid claim to, and was allowed to prove its claim for, the full amount appearing on the books of the bank to the credit of the county, and that three dividends of 10 per cent. each had been paid to the county prior to the commencement of the action. After the submission of the cause, counsel for defendant moved for leave to have the cause reopened, in order that a motion might be made therein, which motion, not being opposed by plaintiff, was granted. Defendant's counsel then moved the court to render judgment for defendant upon the first cause of action, because plaintiff cannot maintain an action against the county, for the reason that the county, through its board of commissioners, had already audited and allowed plaintiff's claim, and had caused a warrant to be drawn and delivered to him. The court found for the defendant upon the alleged first cause of action, on the ground that there was no cause of action stated against the county, and dismissed the complaint as to the second cause of action, finding that it was barred by the statute of limitations. Plaintiff appeals from the judgment, and from an order denying his motion for a new trial.

1. The court below held that the right to appeal from the decision of the board of commissioners, given by section 764 of the fifth division of the Complied Statutes of 1887, and by section 4288 of the Political Code, excludes the maintenance of an independent action on the rejected demand; but, in our opinion, the owner of such a claim is not confined or li mited to the remedy by appeal. He may pursue that remedy, or he may bring an action upon the disallowed claim. His privilege is to take either course,--to appeal to the district court within 30 days, or to sue upon the claim within six months, after the rejection. This view accords with the general rule (7 Am. & Eng. Enc. Law 2d Ed. 962), and is in harmony with section 517 of the Code of Civil Procedure, as well as with the practice hitherto prevailing in Montana. The learned judge was right, however, in dismissing the complaint as to the second cause of action. The complaint was filed on March 31, 1896. The account upon which the second cause of action is based was rejected by the board of county commissioners on the 13th day of March, 1894. Section 517 of the Code of Civil Procedure, which provides that actions on rejected claims against the county must be commenced within six months after the first rejection thereof by the board of commissioners, went into effect on the 1st day of July, 1895. The remedy is barred. In the case of Guiteman v. Wishon, 21 Mont. 458, 54 P. 566, the question involved was elaborately considered, and we adhere to the views there expressed.

2. We are of the opinion that the learned judge of the district court was correct in holding that the facts stated in the first cause of action are insufficient to support any judgment thereon that might be rendered in favor of plaintiff, who seeks to recover a money judgment against the county upon the warrant. Section 4193 of the Political Code declares that a county has power to sue and be sued. Section 4286 of the same Code provides for the method of presenting accounts chargeable against the county to the board of county commissioners, while the immediately succeeding section provides that no account must necessarily be passed upon by the board unless itemized and verified. Section 4288 creates the right of appeal from the action of the board in allowing or disallowing an account or claim. Section 4290 is as follows: "Warrants drawn by order of the board on the county treasurer for the current expenses during each year must specify the liability for which they are drawn, and when they accrued, and must be paid in the order of presentation to the treasurer. If the fund is insufficient to pay any warrant, it must be registered and thereafter paid in the order of its registration." Section 4199...