People ex rel. Reynolds v. Board of Com'rs of Rio Grande County

• Decision Date: 14 March 1898
• Citation: 11 Colo.App. 124,52 P. 748
• Parties: PEOPLE ex rel. REYNOLDS v. BOARD OF COM'RS OF RIO GRANDE COUNTY et al.
• Court: Colorado Court of Appeals

52 P. 748

11 Colo.App. 124

PEOPLE ex rel. REYNOLDS v. BOARD OF COM'RS OF RIO GRANDE COUNTY et al.

Court of Appeals of Colorado

March 14, 1898

Error to district court, Rio Grande county.

Mandamus by the people, on the relation of Harry Reynolds, against the board of commissioners of Rio Grande county and others, to compel the levy of a tax to pay relator's judgment against the county. From a judgment for defendants, plaintiff brings error. Reversed, and motion to modify judgment denied.

Patterson, Richardson & Hawkins, for plaintiff in error.

Ira J. Bloomfield, Jesse Stephenson, and C.M Corlett, for defendants in error.

THOMSON P.J.

This proceeding in mandamus was instituted to compel the board of county commissioners of Rio Grande county to levy a tax to pay a judgment theretofore obtained against that county, and of which the relator had become the owner. The petition averred the recovery of the judgment on the 10th day of September, 1885, by Asa F. Middaugh; its nonpayment; a demand upon the board by the relator, after he had become its owner to levy a tax for its payment; and an order of the board refusing and rejecting the demand. The respondents made return in the nature of demurrer to the alternative writ and, the demurrer being sustained, judgment was entered for them. From that judgment the relator prosecuted error to this court. Two other suits had been brought against the board, on the relation of Frank W. Rollins, for a mandamus to compel the levy of a tax to pay two other judgments of which he was the owner. The petitions in his cases were the same as the one in this case, and the same proceedings were had in them as in this, and at the same time. They also were brought here by writ of error, and the questions involved in all were disposed of in one of the cases in which Rollins was the relator. In an opinion, in which the questions arising upon the petition were exhaustively discussed by Bissell, J., the conclusion was reached that upon the averments of the pleading the relator was entitled to the relief which he sought. People v. Rio Grande Co., 7 Colo.App. 229, 42 P 1032. The same judgment was given by this court in all the cases. This cause, with the others, was then remitted to the district court of Rio Grande county, where the respondents answered the petition and writ, alleging that, prior to the commencement of the suit by Middaugh against the county, it was agreed between him and the board of commissioners that the latter would make no defense to the suit to be instituted, and that he would pay the costs of the suit, and accept county warrants, to be drawn on any moneys in the treasury not otherwise appropriated, in full and complete satisfaction of his judgment; that he accordingly instituted his suit, and obtained his judgment; that he thereupon received from the board county warrants, drawn upon the treasurer, in full satisfaction of his judgment, and satisfied the judgment of record. The replication consisted of denials of some of the allegations of the answer, and demurrers to others. The relator deposited the warrants in court for the use of the defendants. At the trial it was stipulated between counsel that prior to the commencement of Middaugh's suit it was agreed between him and the board that he should pay the costs of the suit, and receive in satisfaction of his judgment county warrants drawn against money in the county treasury not otherwise appropriated; that upon the rendition of the judgment the board delivered to him the warrants of the county, payable out of money in the treasury not otherwise appropriated, which he received and accepted in full and complete satisfaction of the judgment; that these warrants were afterwards presented to the county treasurer, who refused payment, and indorsed upon them, "No funds"; that the warrants, and all Middaugh's rights under the judgment, were assigned to the relator; and that no part of the warrants has ever been paid. The respondents introduced in evidence a certified transcript of the judgment, on which appeared a purported satisfaction, and upon the production of which to the board the warrants were issued; but no satisfaction appeared on the docket of the clerk, although Middaugh, before receiving the warrants, had ordered him to enter satisfaction. It was also admitted that the board had unqualifiedly refused to order the levy of the tax to pay the judgment. But one question is made the subject of argument, and there is really no other in the record; and that is, "Do the facts proven and admitted show a satisfaction of the judgment?" If the judgment has been satisfied, it is manifest that this action will not lie. It is therefore to be ascertained whether the acceptance by Middaugh of the warrants pursuant to the agreement between him and the board, together with the order given by him to the clerk, under the circumstances surrounding the transaction, and in view of subsequent developments, amounted to satisfaction.

Section 527 of the General Statutes, which was the law in force when this judgment was rendered, provided that a judgment against a county should be paid by a tax to be levied for the purpose, with a proviso that the board, instead of levying the tax, might pay the judgment by a warrant upon the county treasury. Those were the only methods by which a judgment against a county could be paid. The language of the statute would perhaps authorize the levy of the tax regardless of the condition of the treasury; but the authority to issue a warrant at once, instead of levying a tax, contemplated the presence in the treasury of money applicable to the payment of the judgment, and which, on presentation of the warrant, would be paid to the holder. By the terms of the agreement, this judgment was to be paid by the issue of a warrant, and not by the levy of a tax; but, unless there was money in the treasury to meet the warrant, its issuance was unauthorized, and the board had no alternative except to levy a tax. A county warrant is the means by which funds for the payment of claims can be reached in the county treasury. It is the mode whereby money is transferred from the treasurer of the county to its creditors, and the payment of its debts effected, and some such method is absolutely necessary to the proper and accurate transaction of the county's business. The warrant is the authority of the treasurer to pay out the money of the county upon the debt, but its mere delivery to the creditor does not constitute payment. Its purpose is to enable him to secure the money to be applied in payment, and, if the warrant fails of that purpose, his claim remains unsatisfied. We are unable to find that the question of the effect of the issue of a county warrant upon the claim for which it was given has ever arisen in this state, but it has been directly passed upon in other jurisdictions; and, so far as our researches have extended, it is the unanimous judicial opinion that the mere issue and delivery of a warrant of that kind is not a payment of the debt, but that the debt is paid only in the event that the money is realized on the warrant. Paddock v. Symonds, 11 Barb. 117; Bank v. Baber, 6 Lea, 273; Dyer v. Covington Tp., 19 Pa.St. 200; Allison v. Juniata Co., 50 Pa.St. 351; Argenti v. San Francisco, 16 Cal. 256, 275.

But there was something more in the transaction of which these warrants were the outcome than the mere recovery of a judgment, and its attempted payment by warrants; and some features peculiar to itself are made the basis of an argument by counsel which seems to demand examination: First. Prior to the commencement of Middaugh's suit it was agreed between him and the board of commissioners that, if the board would make no defense to the action, he would pay the costs of the suit, and receive county warrants, drawn on moneys in the county treasury not otherwise appropriated, in full satisfaction and payment of his judgment. Second. The suit was instituted, and, in accordance with the agreement, the county interposed no defense; judgment was given for the amount of his claim, and warrants, payable out of moneys in the treasury not otherwise appropriated, issued to him, which he received in full and complete satisfaction of his judgment, instructing the clerk of the court to enter satisfaction on the judgment docket, which, however, the clerk failed to do. Now, it is said that, by virtue of the agreement in pursuance of which the warrants were issued Middaugh was bound to accept them in satisfaction of his judgment, and that his acceptance of the warrants as payment, and his instruction to the clerk to enter satisfaction, together with his production to the board of a transcript which showed satisfaction, is conclusive upon him and his assignee that the judgment was in fact satisfied. Of course, if Middaugh cannot deny that the judgment was satisfied, neither can the relator, because, except that the title to county warrants passes by assignment, they possess none of the characteristics of negotiable commercial paper; and whether they are in the hands of an assignee, or of the original payee, the...