King v. The City of Frankfort

• Decision Date: 01 January 1896
• Docket Number: 79
• Citation: 43 P. 983,2 Kan.App. 530
• Parties: A. S. KING, as Receiver of the First National Bank of Frankfort, v. THE CITY OF FRANKFORT
• Court: Kansas Court of Appeals

43 P. 983

2 Kan.App. 530

A. S. KING, as Receiver of the First National Bank of Frankfort, v. THE CITY OF FRANKFORT

No. 79

Court of Appeals of Kansas, Northern Department, Central Division

January 1, 1896

Opinion Filed February 14, 1896.

MEMORANDUM.--Error from Marshall district court; R. B SPILMAN, judge. Action upon a city warrant by A. S. King, as receiver of the First National Bank of Frankfort, Kan against the City of Frankfort. Judgment for defendant. Plaintiff brings the case to this court. Affirmed. The opinion herein, filed February 14, 1896, states the facts.

Judgment affirmed.

W. W. & W. F. Guthrie, and W. J. Gregg, for plaintiff in error.

James B. Van Vliet, and Giles E. Scoville, for defendant in error.

GARVER J. All the Judges concurring.

OPINION

GARVER, J.:

This was an action, commenced November 7, 1891, upon a warrant issued in favor of J. S. Walker by the city of Frankfort, under date of January 1, 1883, for the sum of $ 94.60, payable January 1, 1884, with interest at the rate of 10 per cent. per annum. A demurrer to the petition was interposed by the defendant, and sustained by the trial court, on the ground that the petition showed upon its face that the action was barred by the statute of limitations. Did the court err in so ruling? This is the only question in this court.

The city warrant which is the basis of this action was issued in payment for work done by the payee, J. S. Walker, in the construction, in said city, of a. sidewalk which was built in front of lot 20, block 67, pursuant to a city ordinance duly enacted for that purpose. It is conceded that the warrant was, when issued, a valid and binding obligation of the city; but the plaintiff in error contends that a cause of action did not accrue thereon against the city until a demand for payment had been made. We think it is well settled in this state that such warrant created an absolute liability against the city, upon which an action could be maintained after the time named for its payment, without regard to what the city may have done with reference to making or collecting an assessment upon the lot improved. (City of Wyandotte v. Zeitz, 21 Kan. 649; City of Burrton v. Savings Bank, 28 id. 390; City of Atchison v. Leu, 48 id. 138.)

We think it is also clear that an action on such warrant would ordinarily be barred in five years after its maturity. ( Walnut Township v. Jordan, 38 Kan. 562, 16 P. 812.) To avoid the effect of the statute of limitations, the plaintiff claimed, and so alleged in his petition, that the city had made a written acknowledgment of its liability within five years next preceding the commencement of the action, and thus removed the bar of the statute. In support of this claim, there is attached to the petition, as a part thereof, a copy of a resolution passed by the city council of said city, in 1889, for the purpose of making an assessment upon said lot 20, to provide means to reimburse the city for the construction of said sidewalk. The resolution, so far as pertinent to this case, recited:

"WHEREAS The sidewalk tax levied on the 7th day of ...