Wasson v. Hoffman

• Decision Date: 09 April 1894
• Parties: WASSON v. HOFFMAN, County Treasurer.
• Court: Colorado Court of Appeals

36 P. 445

4 Colo.App. 491

WASSON v. HOFFMAN, County Treasurer.

Court of Appeals of Colorado

April 9, 1894

Error to district court, Rio Grande county.

Action by Martin V.B. Wasson against David S. Hoffman, treasurer of Hinsdale county. There was judgment for defendant, and plaintiff brings error. Reversed.

Frank C. Goudy and Charles M. Campbell, for plaintiff in error.

BISSELL P.J.

Wasson filed a bill in the district court of Rio Grande county against the treasurer of the county of Hinsdale to restrain the collection of certain taxes, charged to have been illegally assessed, which the treasurer was proceeding to enforce. It appeared from the complaint that Wasson resided in Rio Grande county, owned the property on which the taxes had been levied, and that it was subject to taxation in the county of his residence. It was alleged that it had been assessed in Rio Grande, and that the taxes were paid. The defendant demurred to the complaint on the ground that, since he was sued as treasurer, he ought to have been sued in Hinsdale county, and on the further ground that the plaintiff's remedy lay in an application to the board of commissioners to remit the taxes. He did not attack the bill for want of substance, and what has been stated is enough to exhibit the points in controversy.

The first proposition was clearly settled by the supreme court in the case of Fletcher v. Stowell, 17 Colo. 94, 28 P. 326 where it was decided that the Code relating to the venue of actions does not operate to restrict the right of the plaintiff to bring the suit wherever he may elect. It was adjudged that a failure of the plaintiff to follow the statute could not be regarded as a jurisdictional or a fatal defect. In other words, the plaintiff may bring the action where he chooses, and the defendant's only remedy lies in an application to the court, on cause exhibited, to change the case to the proper county. What might be the effect of a refusal of the court to make the transfer if a proper ground were stated, and a sufficient showing exhibited, is not involved in the present inquiry, because the treasurer did not avail himself of his rights in this particular. He simply demurred because the suit was brought in the wrong county and the court evidently decided that the mistake was a jurisdictional one, which would defeat the action. It is held otherwise, and the court therefore erred in its ruling respecting this...