John Deere Plow Co. v. County of Phillips

• Decision Date: 06 May 1935
• Docket Number: 13400.
• Citation: 97 Colo. 196,48 P.2d 793
• Parties: JOHN DEERE PLOW CO. v. COUNTY OF PHILLIPS, STATE OF COLORADO.
• Court: Colorado Supreme Court

48 P.2d 793

97 Colo. 196

JOHN DEERE PLOW CO. v. COUNTY OF PHILLIPS, STATE OF COLORADO.

No. 13400.

Supreme Court of Colorado, En Banc.

May 6, 1935

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

Action by the John Deere Plow Company against the County of Phillips, State of Colorado. To review a judgment of dismissal, the plaintiff brings error.

Judgment affirmed.

BUTLER C.J., and BOUCK, J., dissenting.

Edward V. Dunklee, of Denver, and W. Mabry King, of Sterling, for plaintiff in error.

Ben L Garman, of Holyoke, for defendant in error.

HILLIARD, Justice.

An action to recover taxes paid under protest. Judgment of dismissal entered and the taxpayer assigns error.

The proceeding was against 'The County of Phillips, State of Colorado.' An action so brought is not maintainable. 'In all suits or proceedings, by or against a county, the name in which the county shall sue or be sued shall be, the board of county commissioners of the county of.' C. L 1921, § 8662. Even had the taxpayer been successful below its judgment would have been unavailing. Board of Com'rs of Phillips County v. Churning, 4 Colo. App. 321, 35 P 918. 'We have but one statutory provision concerning the manner in which a suit shall be brought against a county. It must be brought against the board of county commissioners of the county sued. That is the corporate name of the county for the purposes of the suit, and there is no authority to sue it by any other name. In this case, the statutory requirement having been disregarded, the judgment is a nullity.' See, also, Board of Com'rs of Sweetwater County v. Young, 3 Wyo. 684, 29 P. 1002; County of Rock Island v. Steele, 31 Ill. 543; 15 C. J. 665, § 379; 7 R.C.L. 966, § 40.

Let the order be that the judgment is affirmed.

BUTLER, C.J., and BOUCK, J., dissent.

BUTLER Chief Justice (dissenting).

A careful consideration of the record and the authorities impels me to dissent from the conclusion reached by a majority of my brethren.

The facts distinguish this case from Board of County Commissioners v. Churning, 4 Colo. App. 321, 35 P. 918, cited in the majority opinion. The present action was brought against 'The County of Phillips, State of Colorado; Ray E. Crosby, as County Treasurer of Phillips County, State of Colorado, and S. J. Meakins, John Sandquist and R. Claymon, as County Commissioners of the County of Phillips and State of Colorado.' An answer on the merits was filed. It recites: 'Comes now the County of Phillips, one of the defendants in the above-entitled cause, by Ben L. Garman, County Attorney, and for answer to the plaintiff's complaint alleges and states:' It is verified by Ben L. Garman, as attorney for Phillips county. No objection was made, in the answer or otherwise, to the manner in which the defendants were named. When the case came on for trial Phillips county appeared by Ben L. Garman, its attorney. Mr. King, one of the attorneys for the plaintiff, moved to dismiss the case 'as to all the defendants, except the County of Phillips,' and it was so ordered. The effect of that order was to dismiss the case as to the county treasurer and as to S. J. Meakins, John Sandquist, and R. Claymon, leaving as defendants 'The County of Phillips, State of Colorado' and 'County Commissioners of the County of Phillips and State of Colorado.' It was not necessary to name the county of Phillips as such, the statutory designation of the county for purposes of suit being 'The Board of County Commissioners of the County of Phillips.' The failure to insert the words 'The Board of' Before the words 'County Commissioners of the County of Phillips' was a mistake in the name--a typical case of misnomer, which, if called to the attention of the trial court, could, and of course would, have been corrected pursuant to section 81, Code of Civil Procedure, which provides: 'The court may * * * amend any pleading or proceeding, adding or striking out the name of any party, or by correcting a mistake in the name of a party.'

It was a mere defect which could not possibly affect the substantial rights of the parties, and such defects we are required by sections 84 and 439 of the Code of Civil Procedure to disregard.

It was a defect, the objection to which, at common law, had to be made by plea in abatement, and under the Code must be raised by demurrer when it appears on the face of the complaint, otherwise by answer. If not so made, it is waived. The record does not show any such objection. The case was tried to the court upon a stipulation of facts, which related only to the merits. The record recites that the stipulation was made by 'the plaintiff and the defendant, by their attorneys.' The opinion of the court deals only with the merits. It is clear beyond the possibility of a doubt that both counsel and the court treated the case as though the county were in court under the proper name. The statute declares that a county shall be 'a body corporate and politic, and as such shall be empowered * * * to sue and be sued.' (Italics are mine.) C. L. § 8658. The fourth section farther on (section 8662) prescribes the name in which a county shall sue and be sued. A mistake in the name is a mere misnomer, objection to which must be taken in apt time or it is waived. It is not a fatal defect. It goes not to the substance, but only to the form, and may be corrected by amendment. Del Monte Live Stock Co. v. Board of Commissioners of Chaffee County, 24 Colo.App. 340, 133 P. 1048, 1051; Union Pacific R. Co. v. Board of County Commissioners, 69 Kan. 278, 76 P. 865. Clearly the objection was waived in the present case. The briefs filed herein argue the case fully on the merits. The first and only time the objection was raised was at the close of the answering brief filed in this court. Counsel there makes this suggestion: 'Aside from the extent of the tax lien, it appears that any action brought by the plaintiff should have been against the defendant designated as under section 8662, C. L. Colorado, 1921; Board of Com'rs of Phillips County v. Churning, 4 Colo. App. 321, 35 P. 918.' That, and nothing more. Counsel for the plaintiff in error ignore the objection entirely. They not only do not argue it, but do not even mention it in their briefs.

In the Churning Case, supra, a judgment went against a county, whereupon the board of county commissioners sued out a writ of error. The court held that the board was not a party to the proceeding below and could not be affected by the judgment; and that the case, therefore, was improperly Before the appellate court. The writ of error was dismissed. That was sufficient for the purpose of the decision. If the case was improperly Before the court, dismissal of the writ of error was the proper disposition of the case. It would seem that in that case a discussion of the validity of the judgment was unnecessary. Nevertheless, in the opinion the court stated, in substance, that there was no authority to sue the county by its name, and that the judgment against it was void. Four cases were cited in the opinion in that case. Three of them (one from Illinois, one from California, and one from Georgia) did not involve the question of the name in which a county could sue and be sued. The fourth case, County of Rock Island v. Steele, 31 Ill. 543, also cited in the majority opinion in the present case, was decided in 1863 under a statute (Laws Ill. 1861, p. 235, art. 13, § 1) which conferred power upon counties 'to sue and be sued, in the manner prescribed by law.' (Italics are mine.) The statute then prescribed the manner in which a county could sue and be sued. It provided: 'All acts and proceedings by or against a county, in its corporate capacity, shall be in the name of the board of supervisors of such county.' (Art. 13, § 3). It is significant that in section 8658, Compiled Laws, quoted above, the words 'in the manner prescribed by law' do not appear. In the Illinois statute the grant of power was coupled with that limitation; whereas in ours the grant is without limitation. In Illinois there was some excuse for holding that failure to sue in the name prescribed by statute was a jurisdictional defect; in Colorado there is none, for here such a defect is a mere misnomer. Moreover, in Colorado section 8658, Compiled Laws, as we have seen, makes counties bodies corporate and politic, and expressly confers power upon them as such to sue and be sued.

The views expressed in the Churning Case, supra, concerning the invalidity of the judgment are, it is respectfully submitted, out of harmony with modern judicial thought. That case was decided close to half a century ago, when courts sometimes regarded as fatal defects that today are not so regarded. More and more the tendency is to pay less attention to form and more to substance, to make the former yield to the latter, to aim at substantial justice rather than at technical perfection.

In 1877, in Moynahan v. People, 3 Colo. 367, the defendant was charged with the murder of Patrick Fitz Patrick. Upon the trial it appeared that the deceased's name was Patrick Fitzpatrick. He was convicted. The court reversed the conviction, holding that the indictment was fatally defective, saying that the...