City of Central v. Wilcoxen

3 Colo. 566 | Colo. | 1877

Lead Opinion

Thatcher, C. J.

Under the pleadings, whether the claims for which the city warrants in controversy were issued, were allowed by the council of Central City, or whether the mayor and ETenry Grannis, whose name is signed thereto as clerk, were, in behalf of the city, authorized to execute the warrants, are not pertinent inquiries. Ho issue was tendered, that, under the statute, would permit the defendant to deny the authority of the mayor and clerk to execute the warrants in question.

Section 14 of the Practice Act (R. S., p. 506) provides, “Ho person shall be permitted to deny, on trial, the execution of any instrument in writing, whether sealed or not, *569upon which any action may have been brought, or which shall be pleaded or set up by way of defense, or set-off, unless the person so denying the same shall, if defendant, verify his plea by affidavit, and if plaintiff, file his or her affidavit denying the execution off such instrument.”

This language is free from ambiguity. In terms it requires a defendant, if he would deny the execution of the instrument, to file a verified plea for that purpose. Such a plea would be a demand that the plaintiff should prove, not only the signatures of the officers who issued the warrants in behalf of the city, but also that they had authority to issue them. Delahay v. Clement, 2 Scam. 577; City of Central v. Brown, 2 Col. 704.

In the absence of a verified plea, such proof is dispensed with. We find that the defendant has verified none of its pleas. The city seems to have lost sight of the marked distinction between an affidavit of merits and a verified plea. An affidavit of merits was filed, and this was treated by counsel on both sides, in the. court below and in this court, as a verified plea. The office of an affidavit of merits is clearly defined by statute, and is essentially different 'from that of a plea. It necessarily precedes the defendant’s pleas, and cannot be substituted for them. Martin v. Skehan, 2 Col. 619.

Even if we were disposed to give the affidavit of merits the effect of a verified plea, it would not avail the defendant, so vague and uncertain is it. The affidavit alleges “that some of the said pretended warrants filed with the said declaration are fraudulent and void, and were never executed by the defendant.” What particular warrants, or how many are within the ban of the affidavit, is left wholly to conjecture.

In no view of the pleadings was the plaintiff required to prove, or the defendant permitted to deny the due execution of the warrants.

•The defendant having, by its failure to interpose the verified statutory plea, precluded itself from controverting the *570prima facie cause of action by impeaching the warrants on the ground that they were executed without authority, the evidence let in by the court, tending to prove their unauthorized issue, was properly disregarded in the rendition of the judgment. 1 Dillon on Mun. Corp., p. 500, et seq., and cases cited.

City warrants, numbered 372, 387, 388, 419, 421 and, 424, were improperly admitted in evidence as they were not yet due. As to these warrants, the action was prematurely brought. They had never been presented for payment, nor are facts alleged in the declaration that would excuse the holder from presenting them. 1 Dillon on Mun. Corp., §410, and cases cited; 1 Daniel on Negotiable Instruments, § 430.

But the defendant in error files a remittitur for the amount of the unpresented warrants. To this practice we see no objection, if the court had the data before it to determine the residue for which judgment might be entered. But an examination of the record shows that the judgment is based upon the warrants introduced in evidence after rejecting (as the record recites) warrants numbered 424, 426, 427 and 430, for what reason, the bill of exceptions is silent. N o warrant numbered 430 was introduced in evidence. We are, therefore, at a loss to know upon what data the judgment is founded, and must disregard the remittitur.

The motion to strike the bill of exceptions from the record having been interposed not only after the joinder in error was filed, but after the cause was set down for hearing, cannot be entertained.

The judgment of the court below is reversed, and the cause remanded for further proceedings according to law.

Reversed.





Rehearing

Upon petition for rehearing, the following opinion was rendered.

Per Curiam:

Even if it were conceded (a point not necessary to decide) that this court must be controlled by *571the transcript filed March 16, 1875, when it varies from the transcript filed February 8, 1876, the remittitur filed in this cause is not of a character to entitle it to consideration. I is not for a sum certain. It assumes that the judgment rendered is based in part upon warrant No. 424, when, in fact, both transcripts recite that this warrant was rejected. We are unable to determine from an examination of the record in what manner the court below arrived at its finding. The element of uncertainty as to the exact basis upon which the judgment is founded, and as to the amount proposed to be remitted is so gréat, that if we were to allow a remittitur in this case, an unsafe precedent would be established. When a remittitur is filed for no certain sum, it will be disregarded.

Petition denied.