City of Pueblo v. Dye

44 Colo. 35 | Colo. | 1908

Mr. Justice Campbell

delivered the opinion of the court:

1. The first objection to the judgment of the county court, the same being rendered upon an appeal from a justice of the peace, is that jurisdiction of the subject-matter was lacking, because an action does not lie in the court of a justice of the peace in this state against a municipal corporation. The particular and main objection is that as a judgment against a municipal corporation cannot be enforced by execution, but only by an action in mandamus, and as the justice had not jurisdiction to issue a writ of mandamus, his jurisdiction to enter a judgment which he cannot enforce by execution is altogether lacking; and if the justice had no jurisdiction, taking an appeal did not vest it in the county court. To this are cited, Riggs v. Johnson County, 6 Wall. 166, 187, and various provisions of our statute defining the jurisdiction of justices of the peace and decisions of our court on that subject. Were it not for defendant’s conduct at the trial, this ojection would raise an important question which we would be obliged to pass upon.—Downing v. Florer, 4 Colo. 209. The defendant successfully. interposed the objection in the justice’s court, and unsuccessfully on the appeal in the county court before trial began. Had it rested its case there, it could now press the point. But after the county court overruled'its motion to dismiss for lack of jurisdiction, defendant asked for a continuance, and later and without objection entered upon the trial. At the close of the plaintiff’s evidence, and again after its own evidence was in, defendant asked the court to instruct the jury to return a verdict, and the court to enter judgment on it, in favor of plaintiff' for $48.70, the amount which it had tendered to plains tiff before trial and kept good in court. Unquestionably the county court would have had jurisdiction of the subject-matter had the action originally been brought therein; hence this voluntary submission by the defendant to its jurisdiction, by going to trial and offering to confess judgment, operated to vest or re-vest jurisdiction in that tribunal, notwithstanding the earlier objection thereto.—Denver S. P. S P. R. R. Co. v. Roberts, 6 Colo. 333; Lyon v. Washburn, 3 Colo. 201; Edwards v. Smith, 16 Colo. 529; Christ v. Flannagan, 23 Colo. 140. This, however, does not preclude,defendant from objecting on other grounds to the different judgment which was actually rendered, and we, therefore, pass to a consideration of some of the more- important ones, though there are others which require a "reversal.

2. Under the provisions'of the act of the general assembly, Session Laws 1897, p. 275, a board of park commissioners was appointed by the city council of the city of Pueblo. To this board the statute gives full, complete and exclusive authority to expend for and on behalf of the city all money realized from the sale of park bonds or from special assessments or appropriations made from the general revenues by the city council for park purposes. For such expenditures the park board must issue its vouchers and certify the same to the city council before payment can be made by the city. No member of the board has any authority to act in its behalf except in pursuance of an order regularly made at a meeting of the board, and no action of the board is binding unless authorized by a majority of its members at a regular, or a duly called special, meeting. The claim here sued upon, which constitutes part of an entire claim which the firm of Johnston & Kingsley assert against the park hoard was, • they say, for services which they performed on the mineral palace under contract. No contract in the first instance was made by the board as a body or by any individual member. The work seems to have been done by this firm on the supposition that they had made a contract with a member of the board or its superintendent. After the work was done, the contractors and two members of the board, not at a meeting of that body, seem to have made a tentative settlement, the amount arrived at being less than the sum claimed; and afterwards, on December 12, 1903, at a meeting of the board, the sum thus fixed was allowed plaintiff as the recorded minutes state. It does not appear from these minutes, or from other evidence, whether this was a regular or a special meeting. Only two of the members were present. The action of the board at this meeting would be valid if it* was a regular meeting, but not'if it was a special meeting, in the absence of evidence that notice was given to all the members since one of them was not present. On the 26th of December of the same month the board held a special meeting and purported to rescind its action of December 12th, and in lieu of the former allowance made another one in favor of the plaintiff of $48.70, and issued their voucher to him for this amount and certified the same to the city council to be paid. No voucher was issued for the allowance of December 12th, or certification made thereof to the city council.

It is well settled that where a particular mode of- discharging the obligations' of municipal corporations is provided by law, it is exclusive and must be pursued.—Swift v. Mayor et al., 83 N. Y. 528; Dannat v. Mayor, 66 N. Y. 585; Crane v. City of Urbana, 2 Ill. App. 559; Board of Directors, etc., and City of Chicago v. Arnold, 60 Ill. App. 328.

Under the statute by which this board was created,' the city could pay for expenditures made Tby the board only when a voucher therefor was approved’by the board and certified to the city council of the city. This was not done in the present case for the amount which the plaintiff claimed and for which he sued. The city expressed a willingness to have judgment go against it for $48.70, which had been approved by the board at. the special meeting of December 26th and certified to the council, and this was the extent of the recovery which plaintiff could have in this action. If the full 'amount of his claim was legally allowed him and approved by the board on December 12th, as he says was the case; his proper remedy is mandamus to compel the board to issue and certify a voucher therefor. If, as the board asserts to be true, the amount was in dispute or was not legally adjusted, an action against the board to ascertain and fix the amount is the first step for him to fake. What was done in this case was an approval and certification by the board of a voucher for $48.70, being less than the amount claimed. The city was not called on to pay the larger sum before a voucher therefore was certified to it. The statutory conditions precedent to its liability not having been fulfilled, it was error to render judgment against the city beyond the amount which it confessed it owed, and for which a voucher had been duly certified to its city council.

3. There is another reason why this action could not be maintained either against the board or the city. The claim of Johnston, and Kingsley against the board was an entire one. A part’ only was assigned to plaintiff. There is no evidence that the board consented to this partial assignment. A creditor cannot split up his cause of action by assigning parts of it without the concurrence of 'the debtor, and the latter, without his consent, cannot be sued by the assignee alone upon such an assignment.—C., B. & Q. R. R. Co. v. Provolt, 42 Colo. 103; Home Ins. Co. v. Railroad, 19 Colo. 46; Smith v. Atkinson, 18 Colo. 255; Welch v. Mayer, 4 Col. App. 440; Sneddon v. Harmes, 5 Col. App. 477.

4. The judgment rendered against the city awarded an execution to enforce the same. This was improper. If this was the pnly error in the case, the judgment might be modified by striking therefrom the provision for the execution.

5. Had not defendant city acknowledged its liability and offered to confess judgment to the extent of the amount of the voucher which the park board certified to it, the judgment would have to be reversed and the action dismissed, because no valid contract was established or ratified by the board, and its consent to the partial assignment to plaintiff was not given; but since defendant city acknowledged its ■ indebtedness to plaintiff in the amount of $48.70, the judgment must be reversed and the cause remanded with instructions to vacate the former judgment and enter another in favor of'plaintiff for that amount, all costs accruing after the tender to plaintiff was made to be taxed to him. Reversed.

.Chief Justice Steele and.Mr. Justice G-abbert concur. -