Toothaker v. City of Boulder

• Decision Date: 20 September 1889
• Citation: 13 Colo. 219,22 P. 468
• Parties: TOOTHAKER v. CITY OF BOULDER.
• Court: Colorado Supreme Court

22 P. 468

13 Colo. 219

TOOTHAKER v. CITY OF BOULDER.

Supreme Court of Colorado

September 20, 1889

Error to Boulder county court.

Syllabus by the Court

1. An action may be maintained upon municipal bonds, issued in aid of a public improvement, where the obligation to pay is unconditional, notwithstanding they are issued by virtue of the act of January 10, 1868, (Rev. St. 135.)

2. It is clearly a misnomer to classify the objection that a complaint does not state facts sufficient to constitute a cause of action as an objection against the jurisdiction of the court.

3. As distinct forms of civil actions have been abolished by the Code, we must, in order to determine the application of the statute of limitations in a given case, consider the nature of the cause of the action, and, in some instances, its appropriate form under our former practice.

4. The six-year statute of limitations of this state applies to specialties as well as to simple contracts.

5. In a civil action upon a bond under seal for the direct and unconditional payment of money, the recovery must be had, if at all, upon the obligation or agreement to pay contained in the instrument itself, and cannot be had on any subsequent promise or contract of less solemnity. Hence, if to such an action the defense non accrevit infra sex annos be interposed, it cannot be evercome by a new promise acknowledgment, or part payment, as in like actions upon simple contracts.

S. A. Giffin, for plaintiff in error.

S H. Ballard, for defendant in error.

ELLIOTT J.

The admitted facts and uncontradicted evidence in this case are in substance as follows: On March 1, 1872, the town of Boulder, Colo., which in 1881 became a city of the second class, and is the defendant in this action, issued certain bonds in aid of the Boulder Valley Railway Company. The following is copy of one of said bonds upon which this action was brought:

'$500. United States of America. No. 3.

'Territory of Colorado, County of Boulder.

{25 cent stamp U.S. Revenue.}

{Seal of State.}

'Boulder Town Bond.

'Know all men by these presents, that the town of Boulder, in the county of Boulder and territory of Colorado, is indebted to and promises to pay to the treasurer of the Denver and Boulder Valley Railway and Telegraph Extension Company, or bearer, the sum of five hundred dollars, payable on the first day of January, 1877, at the office of the treasurer of said town of Boulder, in said town of Boulder, with interest at the rate of eight per cent. per annum, payable annually on the first day of January, on presentation of the proper coupons hereto annexed; the last year's interest payable with bond at maturity. This bond, with others of the same issue added, make the sum of ten thousand dollars, which the trustees of said town, by their president, are authorized to issue in aid of said Railway and Telegraph Extension Company, by virtue of an act of the legislative assembly of the territory of Colorado, approved January 10th, 1868, and under the provisions of an act entitled 'An act to legalize and make valid the special election held in the town of Boulder, and to authorize the president of the board of trustees to issue certain bonds thereunder,' approved January 16th, 1872. In testimony whereof, and in accordance with said acts, the town of Boulder hereby pledges its full faith, credit, and property for the punctual payment of this bond and the interest thereon as aforesaid, and has authorized the same to be executed by the president and clerk of the board of trustees of said town, as witness their hands and the seal of said town, executed at the said town of Boulder, in the county of Boulder, and territory of Colorado, this first day of March, 1872.

'[Seal of Town of Boulder.] F. A. SQUIRES, President Board of Trustees.

'W. C. WYNCOOP, Clerk Board of Trustees.'

There were attached to said bond when issued four coupons for the annual interest; coupon No. 1 being for the interest due January 1, 1873. Coupon No. 2 reads as follows: 'The town of Boulder, county of Boulder, territory of Colorado, will pay to the bearer $40.00, at the office of the treasurer of the town of Boulder, in the town of Boulder, in said county and territory, on the first day of January, 1874, being twelve month's interest on bond No. 3. W. C. WYNCOOP, Town Clerk.' Coupons Nos. 3 and 4 were the same, excep that No. 3 was payable January 1, 1875, and No. 4 was payable January 1, 1876. There was no coupon for the last year's interest, the same being payable at the maturity of the bond, January 1, 1877. It appears from the records of the town of Boulder that on September 6, 1880, coupon No. 2 of said bond No. 3, being presented to the board, was ordered to be paid to the lawful holder thereof, who was in no way connected with or acting for the plaintiff, and it is admitted that coupons Nos. 1 and 2 of said bond were accordingly so paid. According to plaintiff's testimony, she became the owner of bond No. 3, with all the coupons attached except Nos. 1 and 2, in January, 1879, as a gift from her husband in his last sickness. Her husband acquired said bond and coupons Nos. 3 and 4 in a trade in Denver. Coupons Nos. 1 and 2 never belonged to plaintiff, but were cut off by the former owners of bond No. 3, and put into circulation as commercial paper. Plaintiff never sold or parted with her interest in the bond, or the coupons which were attached when she got it, nor were the same, or any part thereof, ever paid to her; but the same have been lost or stolen, she having made diligent but unavailing search therefor in all places where she was in the habit of keeping such papers, and in 1880 she served on the town board a notice of her loss of the bond, and told them not to pay to any one else, and she has several times since notified defendant of her loss and demanded payment. The execution and delivery of the bond by the duly-authorized municipal officers of the town of Boulder is not denied; and that the town of Boulder became a city of the second class, known as the 'City of Boulder,' prior to the institution of this action, is expressly admitted.

It was objected on behalf of defendant by motion after pleading, and before the trial, that the county court had no jurisdiction over the subject-matter of the action or over the person of the defendant. It is argued by counsel that the complaint does not state facts sufficient ot constitute a cause of action in favor of the plaintiff and against the defendant, inasmuch as the bond is payable through the agency of the territorial or state officials, as provided by the act of January 10, 1868, (Rev. St. 135,) and not by the municipality issuing the same; that the presumption is that the money is in the state treasury to pay the same; and that the remedy of plaintiff in case of non-payment, if any she has, is by mandamus against some state officer or officers, or by suit for the penalty prescribed by said act.

In our judgment none of these objections are well taken. The complaint and summons having been duly served on defendant in a civil action for a money demand not exceeding $2,000, as the complaint expressly states, and the defendant having appeared and filed its answer, it is difficult to conceive how it can be maintained that the county court was without jurisdiction in the premises. To the objection that the county court did not have have jurisdiction of mandamus proceedings, it is a sumcient answer to say that this is not a proceeding by mandamus. Again, conceding that the complaint does not state facts sufficient to constitute a cause of action, and that objection for such causes may be raised at any time, it is clearly a misnomer in cases of this kind to classify such an objection as one against the jurisdiction of the court. If defendant's counsel are of opinion in any case that the complaint does not state facts sufficient to constitute a cause of action, they may demur, or raise the question in any appropriate way at any time, and the court may correctly sustain the objection; still, it does not necessarily follow that the court is thereby ousted of its jurisdiction, for the complaint may be amended so as to be sufficient; or, even if that cannot be done, still the court may have jurisdiction of the subject-matter as well as of the parties, and in such case may render a valid judgment dismissing the action. The cause being tried to the court without a jury, the finding and judgment were in favor of defendant, and plaintiff brings the case to this court on writ of error.

The defendant relied at the trial on the special defense that the cause of action did not accrue at any time within six years before the commencement of the action. The plaintiff relied upon the payment of coupons Nos. 1 and 2 in September, 1880 to overcome the bar of the statute. The views of the court upon the law applicable to the evidence are not preserved in the record; but this occasions no embarrassment, considering that the evidence is without conflict, and...