Wangnild v. Town of Haxtun

• Decision Date: 06 May 1940
• Docket Number: 14605.
• Citation: 106 Colo. 180,103 P.2d 474
• Parties: WANGNILD v. TOWN OF HAXTUN.
• Court: Colorado Supreme Court

103 P.2d 474

106 Colo. 180

WANGNILD v. TOWN OF HAXTUN.

No. 14605.

Supreme Court of Colorado, En Banc.

May 6, 1940

Error to District Court, Phillips County; Arlington Taylor, Judge.

Action by Charles E. Wangnild against the Town of Haxtun, Colo., for damages resulting from failure of the defendant's treasurer to pay certain sanitary sewer district bonds in their numerical order. To review a judgment of dismissal, the plaintiff brings error.

Reversed and remanded, with instructions.

Myles P. Tallmadge, of Denver, for plaintiff in error.

Sauter & Sandhouse, of Sterling, for defendant in error.

BAKKE Justice.

Plaintiff in error, who was also plaintiff below, sought judgment for damages against defendant town because of failure of its treasurer to pay certain sanitary sewer district bonds in their numerical order. A general demurrer to the complaint based on insufficiency of statement of facts to constitute a cause of action, and a special demurrer on the ground of nonjoinder of parties directed to the failure to name the town treasurer as a defendant, were interposed. The court sustained the general demurrer on the ground that no general liability existed as against the town. Plaintiff elected to stand on his complaint and judgment of dismissal was duly entered.

The complaint, omitting formal parts, was in words and figures as follows.

'3. On or about the first day of January, A. D. 1921, defendant Town issued and delivered its Sanitary Sewer District No. 1 Bonds in the principal amount of $74,500, dated January 1, A D. 1921, consisting of 45 bonds in the denomination of $1,000 each, numbered 1 to 45, inclusive and 59 bonds in the denomination of $500 each, numbered 46 to 104, inclusive bearing interest at the rate of 6% per annum, payable semi-annually on January 1st and July 1st in each year, as evidence by interest coupons attached to said bonds. Said bonds, by their terms, were made payable on or Before the first day of January, A. D. 1938. Said bonds were duly issued pursuant to and in accordance with Sections 9464 to 9513 inclusive, Compiled Laws of Colorado, 1921, in anticipation of the collection of special assessments which were duly levied against real property in said Sanitary Sewer District No. 1, situated within the boundaries of defendant Town.

'4. Plaintiff is the owner and holder of bonds of said issue in the principal amount of $4,000, numbered 36, 37, 38, 42 and 45, in the denomination of $1,000 each.

'5. In accordance with said law, defendant Town paid and redeemed $35,000 of said issue of bonds in regular numerical order being bonds numbered 1 to 35, in clusive, in the denomination of $1,000 each, and paid all interest on the outstanding bonds of said issue up to and including the first day of July, 1937, but it has not paid the interest which became due on the outstanding bonds of said issue on the first day of January, A. D. 1938.

'6. Section 9502, Compiled Laws of Colorado 1921, being one of the sections of the law under which said bonds were issued, provides that bonds of the character of those involved in this action shall be paid in their numerical order. Notwithstanding said provision, defendant Town unlawfully paid and redeemed bonds of said issue of a face value of $8,000, namely bond numbered 43 in the denomination of $1,000, and bonds numbered 54, 58 to 67, and 87 to 89, all numbers inclusive, in the denominations of $500 each. The money used to pay said $8,000 of bonds was derived from said special assessments levied against real property in...