Price v. Board of Com'rs of Kit Carson County

• Decision Date: 13 May 1912
• Citation: 124 P. 353,22 Colo.App. 315
• Parties: PRICE v. BOARD OF COM'RS OF KIT CARSON COUNTY.
• Court: Colorado Court of Appeals

124 P. 353

22 Colo.App. 315

PRICE v. BOARD OF COM'RS OF KIT CARSON COUNTY.

Court of Appeals of Colorado

May 13, 1912

Appeal from District Court, Kit Carson County; W.S. Morris, Judge.

Action by the Board of Commissioners of Kit Carson County against T.G. Price. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with instructions.

P.B Godsman, of Burlington, and Allen & Webster, of Denver, for appellant.

Orr &amp Cunningham and H.M. Mason, all of Colorado Springs, for appellee.

WALLING J.

Appellant, a former county judge of Kit Carson county, was defendant in the action in the district court and has appealed from the judgment therein rendered against him in favor of the board of commissioners of that county. The abstract of record contains the following pleadings in the action, to wit, a second amended complaint, the answer thereto, and the replication to that answer. The second amended complaint set forth two causes of action, in the first of which it was charged that the defendant, while county judge, collected and received fees for services rendered by him as such officer, in excess of his salary and legal expenditures, to the amount of $52.40, which he had failed to pay over to the county treasurer. No question affecting the judgment upon this cause of action has been argued; and no further special comment will be made with respect to it.

The facts stated in the second cause of action, as to the alleged liability of the defendant therein asserted, are substantially the following: During the year from January, 1904, to January, 1905, the defendant was the county judge of said county, and as such was entitled to a salary of $1,000, the full amount of which, with all expenses to which he was entitled, was retained by him out of the fees and earnings of the office collected by him. During the same year, he performed services, incident to the duties of his office, for which certain fees were by law required to be charged and collected, and thereby earned surplus fees, above his salary and expenses, amounting to the sum of $3,645.95. These last fees were earned by reason of the performance by the defendant of various services, shown by the records and files of cases and other proceedings in his court, and also appearing from a record kept by him of miscellaneous services performed, such as taking acknowledgments, making certified copies, etc. A "schedule," purporting to show the fees legally chargeable for those services, aggregating the sum last mentioned, was set out in the complaint; and it was alleged that the defendant had neglected and omitted to tax those fees, or to account for the same in any manner, as earnings of his office; and that he negligently and willfully failed to collect such fees.

The defendant answered at considerable length, setting up several defenses to the causes of action alleged in the complaint. The affirmative defenses were sufficiently put in issue by the replication; and, in view of the condition of the record, it is unnecessary to consider any of those defenses. The first defense pleaded amounted to a general demurrer to the complaint. It appears from the abstract that a hearing was had upon the demurrer contained in the answer, and the same was overruled, prior to the filing of the replication. One of the defenses, after admitting the defendant's incumbency of the office during the time mentioned in the complaint, the collection of fees earned therein, and payment therefrom of the defendant's salary, averred that the defendant had duly and fully reported and made accounting for the fees and earnings of his office, and had paid over all surplus earnings to the county treasurer, and denied all allegations of the complaint not specifically admitted.

It further appears that the cause was tried to the court, who found that the defendant was "indebted to the plaintiff, by reason of the matters and things set forth and alleged in the complaint, in the sum of $1,507.95, for fees, commissions, and emoluments earned while judge and acting clerk of the county court of Kit Carson county, Colo., during the year 1904, and which said defendant negligently failed to collect, and failed and refused to pay over to said Kit Carson county, and that said sum is over and above the earnings, heretofore reported by defendant to plaintiff, and above all salary and expenses to which the said defendant became and was entitled for said period of time;" and judgment was rendered against the appellant for the sum last mentioned. There is no bill of exceptions; hence the evidence and proceedings at the trial are not before us.

The demurrer was to the complaint as a whole. Therefore it was properly overruled, if either cause of action of the complaint was good. Campbell v. Shiland, 14 Colo. 491, 23 P. 324. It has not been claimed, in argument, that the first cause of action was insufficient; and for that reason alone the assignment of error based upon the overruling of the general demurrer cannot be sustained. We are bound to assume that the evidence supported the court's findings and judgment, provided that the judgment was authorized by the allegations of the complaint under any conditions of proof. So that our investigation upon this record is limited by the rule, which was declared in Barr v. Foster, 25 Colo. 28, 52 P. 1101, as follows: "As we have frequently held, an exception is necessary to enable this court to review the judgment or decree of the trial court upon the evidence, but in none of the cases is it held that an exception to the judgment is necessary to enable the court to examine and correct an error apparent upon the record; but, on the other hand, the rule is, when the error in the judgment does appear in the record proper, the court will consider and correct it, although no exception has been taken. Thornton v. Brady, 100 N.C. 38 ; In re Johnston, 54 Kan.

726 ; Gower & Holt v. Carter & Shattuck, 3 Iowa (Cole's Ed.) 244 ; Jones's Heirs v. Jones's Adm'r, 42 Ala. 218. Since the abstract nowhere mentions the fact that a demurrer was interposed, or presents the rulings thereon, we are not at liberty, under our rules, to consider this assignment, and the only question presented for our determination is as to the sufficiency of the allegations of the complaint to sustain the decree rendered; in other words, whether the complaint states any cause of action, and, if so, whether such cause of action entitled plaintiff to the relief granted."

The rule that the allegations of the complaint will be examined on appeal, to determine whether they sustain the judgment was applied in the case of Frost v. Board of County Commissioners of Teller County, 43 Colo. 43, 95 P. 289; and that decision, in its implications, at least, furnishes a direct and controlling precedent for the holding that the second cause of action of the complaint now being considered shows a right of recovery, to some extent, against the appellant. In the Teller County Case, the defendant was sued, in a single cause of action, for the amount of surplus fees, alleged to have been earned by him, as county judge, in excess of his salary. It did not appear from the averments of the complaint, as stated in the opinion of the court, whether the fees sued for had been collected by the officer, or not; but the evidence showed that a part of the total amount claimed had not been collected. It was held that the complaint was insufficient to sustain the judgment, which had been rendered against the defendant. Mr. Justice Helm, delivering the opinion of the court, referred to section 1936d1, 3 Mills' Ann.Stat. (Rev.Sup.), which reads: "Every officer named herein shall collect every fee, as prescribed in this act, for services performed by him, in advance, if the same can be ascertained, and when any...