Territory v. Newhall

• Decision Date: 25 August 1909
• Citation: 103 P. 982,15 N.M. 141
• Parties: TERRITORYv.NEWHALL et al.
• Court: New Mexico Supreme Court

15 N.M. 141

103 P. 982

TERRITORY

v.NEWHALL et al.

Supreme Court of the Territory of New Mexico.

Aug. 25, 1909.

Syllabus by the Court.

When the treasurer of a county in this territory retained a commission for the amounts collected by and paid to him by the sheriff of the county for gaming and liquor licenses under Laws 1901, p. 46, c. 19, and the board of county commissioners audited and approved the accounts of the treasurer, knowing all of the facts in the case, and allowed him to retain the commission under a mistake of law, there being no fraud or improper conduct on the part of the treasurer, the money so retained cannot be recovered back, as the same was a voluntary payment made under a mistake or in ignorance of the law.

Mistake of law is not ground for recovery of money paid.

Appeal from District Court, Bernalillo County; before Justice Ira A. Abbott.

Action by the Territory of New Mexico against Charles K. Newhall and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Mistake of law is not ground for recovery of money paid.

The defendant, Charles K. Newhall, was the duly elected, qualified, and acting treasurer and ex-officio collector of the county of Bernalillo, in this territory, for the years 1901 and 1902, and the defendants Flournoy and Hesselden and four others, who were not made parties to this suit, were his bondsmen. This suit was commenced on May 24, 1906, more than three years after Newhall's term of office had expired. Newhall, the principal on the bond, while a formal party to the suit, was never served with process, and did not enter his appearance in the case. The complaint alleges the election and qualification of Newhall as treasurer and ex-officio collector of Bernalillo county, and the giving of the bond by him and his sureties on which this suit is brought. These allegations were admitted in the answer, but all of the other allegations set forth in the complaint were denied, including the breaches of the bond. After the evidence was in, the district attorney voluntarily dismissed paragraphs 4 and 5 of the complaint, and continued the action, only claiming under paragraph 3 of the complaint, which alleges that Newhall after March 9, 1901, by virtue of his office, received from the sheriff of Bernalillo county at divers times the sum of $56,630 on account of money collected by the sheriff from liquor and gaming licenses, all of which money it was the duty of the defendant Newhall to distribute, two-thirds to the credit of the school districts wherein such licenses were respectively paid, and one-third to the credit of the general school fund, but that, in violation of his duty, he converted to his own use the sum of $2,265.20 thereof. In addition to the denial of the allegations contained in paragraph 3 of the complaint, the defendants also pleaded the statute of limitations, to wit, that the cause of action did not accrue to the plaintiff at any time within two years next before the commencement of this suit. To that portion of the answer setting up the statute of limitations plaintiff demurs, upon the theory that the statute of limitations could not run against the plaintiff, the territory of New Mexico, and the court sustained the demurrer and gave the defendants leave to amend their answer, which they did by setting up that the sum of $2,265.20 retained by Newhall was kept by him as commission for collecting said gaming and liquor license, that the claim of said Newhall for said commission was duly made to and approved by the board of county commissioners of Bernalillo county as a valid claim and charge of Newhall out of the funds so collected by him; that the accounts of Newhall showing in detail the claim for and retention of the commissions were duly filed with and approved by the said board of county commissioners, who then and there authorized and approved the retention of said commissions as a part of the legal fees and charges of the said Newhall, and that, if Newhall was not legally entitled to said commissions, the allowance of the same to him was the result of a mistake of law, and not of fact. The defendants also allege that the orders approving Newhall's accounts were never appealed from or otherwise reversed, modified, or set aside, but are still in full force and effect. After hearing all of the evidence, the court directed the jury to return a verdict in favor of the defendants, on the ground that the commission could not be recovered, because it was paid under a mistake of law. From this judgment, the plaintiff appeals.

J. M. Hervey and F. W. Clancy, for the Territory. A. B. McMillen, for appellees.

MILLS, C. J. (after stating the facts as above).

In the decision of this case but a single point is involved, viz.: Can the territory recover the commissions paid to Newhall, he not being entitled to them, when the payments to him were made under a mistake of law, both plaintiff and defendants knowing all of the facts in the case?

There are only three grounds on which a suit can be maintained to recover back money paid, to wit, fraud, mistake, or duress. Lamborn v. County Commissioners, 97 U. S. 181, 24 L. Ed. 926. In the case at bar fraud or duress are not charged. Mistake, in order to be a ground of recovery, must be a mistake of fact, and not of law. Such at least is...