Board of County Commissioners v. Johnson, No. 4352

No. 4352 | Colo. | Jan 15, 1903

Chief Justice Campbell

delivered the opinion of the court.

This is an action upon coupons detached from judgment bonds of Lake county, both the bond and coupons being payable to bearer. In some of its aspects tbe case is like that of Board of County Commrs. v. Schradsky, ante, p. 178. The question here argued arises out of the action of the court in sustaining plaintiff’s demurrer to the third defense of the answer, the substance of which is that the judgment, in payment of which the bonds in question were issued, is void, and that, to the knowledge of the owner of the coupons, all the proceedings leading up to the judgment were fraudulently instituted and prosecuted.

The coupons in suit were cut from one of the bonds involved in Board of Commrs. v. Platt, 79 Fed. Rep. 567, and the same fraud here pleaded was interposed as a defense there, and held not good. Counsel for appellee concede that that decision is against their present position, but endeavor to draw a distinction in this, that the facts which they have set up in this defense are different from those formerly alleged, that the pleading here was drawn after the judgment there, and in the light of the opinion of the learned court of appeals they have endeavored to avoid the imperfections which were there pointed out. The only alleged material difference in the facts to which our attention is called is that it is averred here that the plaintiff is not a bona fide holder of the coupons, but that H. B. Johnson, her attorney, is the real owner and was cognizant of all the illegal steps taken in the procurement of the judgment and the issue of the bonds. If such allegation makes a different defense, still it cannot be interposed here; for in the action on the bonds, from which these coupons are cut, the judgment rendered established the liability of defendant on them, and necessarily made it liable on the coupons. And if this defense was not pleaded in the action on the bonds, it might have been, and that judgment is just as conclusive respecting the omitted defense as to any defense that was offered.— Board of Commrs. v. Platt, supra; D. C. I. & W. Co. v. Middaugh, 12 Colo. 434" court="Colo." date_filed="1889-04-15" href="https://app.midpage.ai/document/denver-city-irrigation--water-co-v-middaugh-6561761?utm_source=webapp" opinion_id="6561761">12 Colo. 434-8.

But there is no material difference in the two defenses. The circuit court of appeals has conclusively shown that the fraud alleged does not constitute a defense, not only because the judgment in payment of which the bonds were issued cannot thus be collaterally attacked, but also because it is barred by our statute'of limitations.—G. W. M. Co. v. W. of A. M. Co., 14 Colo. 90" court="Colo." date_filed="1890-01-15" href="https://app.midpage.ai/document/great-west-min-co-v-woodmas-of-alston-min-co-6561895?utm_source=webapp" opinion_id="6561895">14 Colo. 90, 98. We can add nothing to the reasoning of that opinion. The judgment below was right and should be affirmed, and it is so ordered.

Affirmed.