*1 15,825. No. al.
Flanders Clerk and Recorder et Kochenberger, v. (193 281) P. [2d] April 19, Decided 1948. Mr. John W. Mr. Matt for plaintiff El well, Kikel, J.
in error. E. Mr. A. T. Mr. Stewart, Laurence Langdon, Kochenberger. defendant in error
En Banc. *2 opinion of the court. delivered the Alter Justice
Mr. plaintiff plaintiff in- below, error, J. Milo Flanders, against Kochen- stituted a derivative action berger Austin G. as clerk and recorder Pueblo and County compel Board of Kochenberger Commissioners of per- fees,
to account board for quisites, commissions and emoluments of his office and judgment for due; the amount found to be Kochenberger removal of from and other relief. office, Upon summary trial to the court, defendants’ motion for judgment granted, plain- and the action dismissed at tiff’s costs. complaint alleged
In his amended Koch- duly enberger qualified acting elected, is and clerk recorder Pueblo Colorado, has served January, upon officer 1933; since demand County the Board of Commissioners has refused in- against Kochenberger; stitute action defendant taxpayer county; prop- in Pueblo that his erty paid been has assessed and that he has there- taxes Kochenberger on; that reason of the acts complaint plaintiff’s of which is made, been, taxes have brings and will be, increased; that “he this action on similarly behalf of himself and all others who are situ- ated and interested, for the use and benefit of Pueblo taxpayers and the thereof.” alleges:
He further Kochenberger, defendant, Austin G. “The as Clerk and County, of Pueblo collected for Recorder the use and County, perquisites, fees, of Pueblo benefit commissions pertaining emoluments of office of issuance certificates of title vehicles, to the motor operators’ licenses licenses, chauffeurs’ ownership specific mo- on and for tor taxes the collection during fees, all of office. Said vehicles of his tenure amounting perquisites and emoluments commissions, sixty-five eight aggregate the' to two hundred thousand sixty ($265,861.60). sixty-one hundred dollars and cents During salary all his term de- of office of said Kochenberger, fendant, Austin G. as Clerk and Recorder County, paid of Pueblo defendant, has been County Pueblo, Board of and the Commissioners perquisites, commissions emoluments aforementioned are over above amount salary Kochenberger, of said defendant, Austin G. County. Clerk and Recorder of Pueblo “During office, defendant, of his tenure all Kochenberger, Pueb- Austin G. Recorder of Clerk County, monthly lo has failed to make a state- sworn pay over to the treasurer ment and to of Pueblo *3 County perquisites, all fees, commissions and emolu- provided (Vol. ments of office as 2 ’35,. his law C.S.A. Chap. 180) neglected and 45, has failed and make sec. report perquisites, a written said commissions fees, and emoluments to the chairman the board of County provided by commissioners Pueblo as law (Vol. Chap. 39) ’35 3 C.S.A. Sec. and has and failed neglected pay perquisites, fees, said commissions and County provided by emoluments to as treasurer law. (Vol. 3 C.S.A. ’35 Chap. 66, Sec. [38] and 2 Vol. C.S. Chap. A. ’35 Secs. 93 and 94 as amended of ’37 Laws ’41) and Laws of Said defendant, Austin G. Kochen- berger, County Clerk and as Recorder of Pueblo un- lawfully illegally appropriated perquisites, and said portion commissions and emoluments aor thereof to own use.” Kochenberger he filed his answer in which
Defendant every capacity denied admitted each and his official allegation complaint other answering, said contained. Further alleged
he the collection of the fees enum- but herein, portion complaint in the quoted erated were from said collections resulting that funds denied the defend- or emoluments commissions “perquisites, fur- an He individual.” recorder, ant clerk and as the services that sums collected alleged ther had “been accounted for alleged complaint law.” provided by distributed de- trial, and on the before day
Subsequently, a an which, fendant tendered amended answer “amended defense, complaint first alleged re- fails upon to state a claim defendant against lief granted;” being general can be defense a second denial; six-year and in a third he pleaded defense of limitations. statute
Plaintiff moved to of the statute strike plea limitations, which motion was The motion of denied. Board of to dismiss the action as County Commissioners to said board granted, does not specify error on this ruling. moved Kochenberger for sum- defendant
Subsequently there was no “real mary upon ground judgment amended complaint plaintiff.” issue tendered motion is as follows: said pertinent part tendered amended issue no real there is “That the said for the reason complaint has failed to alleges that complaint over to the statement and pay sworn monthly make a commissions fees, perquisites, Treasurer County use bene- collected for the his office emoluments of cer- issuance of to the pertaining fit of Pueblo vehicles, opera- to motor of title tificates licenses, collection licenses, chauffeurs’ tors’ *4 vehicles, on motor and that ownership taxes specific of he fees, has said failure, appropriated reason such or emoluments, a portion commissions perquisites, use. to his own thereof, fact, under of the provisions in truth
“That for for the collection fees said pur- statute providing poses, perquisites, are not the sums so collected defendant, commissions or clerk of the emoluments individually, pro- express but the recorder, paying purpose visions of such for the statutes are expenses expenses admin- of clerk hire and other of the Department istration of the of said clerk’s office. represents
“Further, said defendant and shows to attorney openly court that the for stated prove, expect prove, cannot and does not County either the Colorado, Pueblo, or the State any money has lost whatsoever on account of the .mat- things complaint alleged. ters and in said purports “That herein claims and to have brought prosecuting this action and to be as a same- taxpayer, whereas, reason of the facts aforesaid and attorney plaintiff, plain- admissions of the qualified tiff- is not to maintain this action in it is impossible any injury taxpayer. for him to establish as a support
“Said offers this motion moneys effect affidavit that all him things on account of the matters aforesaid have been paid expended for, accounted over, and distributed provisions accordance with the case made and above the amounts the statutes such provided, and that balance over and
expended for clerk hire and other expenses ap- administration of the plicable him, statutes of the Motor Vehicle Department Secretary or the State, State, portion deposited County of said excess with custody ready Treasurer is in his and control and paid -over to the Treasurer if this court shall proper decide that the construction of said statutes re- quires payment, prove and said defendant offers to by competent witnesses the statement attributed herein attorney plaintiff.” summary judgment granted by motion for
This cause dismissed. court,
109 “The points: First, specifications of are There two overruling plaintiff’s motion to strike court erred “The second, limitations;” and, plea of the statute of sustaining sum- motion defendant’s erred court order. this mary judgment.” discussed be These will Mining 6 Colo. Co., Olathe Silver In Owers v. City Pueblo, 11 App. Curtis v. 980, Pac. and in 391, of Appeals held App. of Court 649, 54 Pac. our 446, Colo. by might pleaded be limitations that the statute of have been issues after the an amendment the answer up. decisions in these made The rule announced by (a), by our Colo., and R.C.P. modified Rule 15 been holdings 123 Pac. Webster, 549, 52 Colo. in Walters v. County Casualty City Maryland Den 952; v.Co. many (2d) other decisions ver, 6, 90 620, Colo. P. announced us. Maryland Casualty City In Den- Co. v. supra, joined,
ver, an answer set- after issue amended ting special limitations forth as a defense the statute of permitted tendered, and, court, order of answer, filed. Plaintiff strike amended moved to Passing upon point which was denied. we said: joined “After trial, issues a cause has been set a court in the exercise reasonable discretion and justice filing permit in the interest amended of an pleading [citing answer authori- additional defenses ties] .” was no error circum- committed,
There under the appearing present permitting case, stances filing pleading amended answer the statute denying limitations, and the motion to strike the same. (b) (c), provisions subsections Under chapter 16, C.S.A., ’35 certain fees al 133, section and recorder for clerk the services lowed performed by him, rendered and to be authorized therein chap provisions section 93 of the same and under p. 1937, 334, and L. Colo. S. L. S. amended ter, as chapter p. 16, C.S.A., ’35 231, and section 1939, p. L. Colo. amended S. designated recorder authorized
and department (Motor as the Department) for Vehicle the admin- relating istration of of the article to the *6 registration by in of motor vehicles his these sections is authorized to collect and retain cer- purpose defraying expenses tain fees the his in imposed upon by connection with the him duties these supra, In 1937, 93, sections. amended, when section was first chapter p. 3, section 94, 334, S. L. was ’37, provisions pertain entirely and its enacted, to the fees allowed the clerk and recorder for services ren- performed discharge dered and in the of his duties statutory agent. Under the of section 3, the county clerk and recorder is authorized to retain certain disposition fees, and with reference the to of these fees provided it is that the clerk and recorder “shall * * * deposit general in the fund of said all such necessary sums so retained hereunder; and the costs of paid by regu- collection and administration shall be * * * lar county, upon warrant duly of said voucher approved.” submitted and w;e plaintiff’s
As understand contention, is it that the moneys by here involved were collected by authority and recorder virtue' of the vested in him by (b) (c), by subsections 133, section sections 93 and 94, amended as hereinabove noted. complaint alleged,
In the it is in the answer de- portion moneys nied, that of collected con- was by Kochenberger verted defendant use. his own here involved affect the matter So far as statutes authority give controversy, registrations, make ownership specific taxes, and re- examinations, collect statutory provided therefor, conferred ceive fees upon not his recorder, clerk and individual capacity, authority virtue of but his office. The fol- personal right office, and is no means a lows or privilege empow- of the incumbent who at the time is prescribed perform and receive the ered the services incumbency office. of his fees reason provided the fees that It is said perquis emoluments, fees, sections enumerated contention The same ites office. or commissions County, 22 Colo. was App. Kit Carson made Glaister v. upon question passing 123 Pac. and in perquisites expression “The ‘all court said: require explanation nor neither emoluments’ seems to scarcely chosen better could have been definition. Words provided by salary express law idea compensation sole officer, should be the all that above the amount received, capacity, salary, performed for services his official treasury. argue should the To be turned-into the provision something less means from or different import than the obvious of the words used would palpable sophistry.” El Paso see, the same To effect *7 People v. Shelden, 616; v. 59 149 499, Colo. Pac. 62 Brown, 125, Colo. 160Pac. 1038. respecting may be contended that some statutes
It perquisites emoluments, and commissions fees, by county indefinite and recorders are somewhat clerks ambiguous, 43 38, 39, but the of sections and and chapter positive ’35 definite.
102, 66, are and C.S.A., chapter repealed by p. 1945, 41 L. Section was S. Assembly, by enacting 16, 338, and the General section again legisla- chapter p. S. 337, 1945, L. evinced a 125, require perquisites tive fees, emoluments, intent to all by and commissions collected corder to a accounted for and clerk and re- placed proper be in the fund office be treasurer, with- only properly drawn therefrom on warrants issued payment deputies of the salaries of such and assistants necessary statutory performance as are their duties. summary judg a moved for
When demonstrating clearly the the burden of he had ment 112 any genuine fact, issue and
absence of doubt an should have been re existence issue against Barnes, solved him. 115 168 v. Colo. Hatfield (2d) Envelope 552; Co., P. Avrick 155 F. v. Rockmont (2d) Corp., 568; U. Sartor v. Arkansas Natural Gas . Sup. S. Ct. L. 724, 88 Ed. 967 plaintiff alleged as we have
Here, said, that de perquisites fees, fendant had collected emoluments, portion unlawfully a commissions, of which he had illegally appropriated to his use, own and that his taxes by been have gal and will be increased reason of such ille appropriation. allegations and unlawful These alleged denied defendant. True it is that defendant in his third defense: “That all taxes, of said fees and portion well as the [defend thereof allowed to payment ant] for the of extra clerk hire and other ex penses prop of the administration act been of said have erly paid applied distributed, over accordance allegations clearly with said acts.” These and their denial positively beyond demonstrate doubt that there presented genuine issue of fact as material to a mat unlawfully illegally ter. Whether defendant had appropriated perquisites, and emolu commissions portion ments or a thereof to his own and whether use, damaged directly indirectly by or not or reason thereof reason of defendants’ failure or neglect strictly comply only with can statutes, upon determined a trial of these issues. Issues of fact jury are for determination the court or a trial at not be considered the court on a motion for summary judgment. Envelope Avrick Co., v. Rockmont *8 supra; Corp., supra. Sartor v. Arkansas Natural Gas summary judg- considered,
The the motion for record ment should have been denied. accordingly, judgment, is reversed and the cause proceedings
remanded to the district court for further harmony in expressed with views herein. Justice dissents. Hilliard
Mr. Justice Hilliard dissenting.
Mr. an below, error, plaintiff Plaintiff proceeding rule and of recognition amended complaint, here, alleged the action he could maintain personally facts cal- that he was a and otherwise taxpayer pleaded it derivatively, culated to him to maintain qualify commissioners say, county to. behalf of board of defendant, which, made a party of Pueblo county, refused proceed against had alleged, further county, to the belong said defendant for certain funds recorder and retained clerk and collected defendant identification of him. More particularly, of (some words involved, alleged funds clerk “as and recorder I italicize) defendant, of Pueblo use has benefit of and emolu- fetes, Pueblo commissions perquisites, of his the issu- ments office of county pertaining motor vehicles, ance of motor ve- certificates of title to licenses and for chauffeur’s licenses, hicle operator’s motor taxes vehicles on ownership of specific collection ** * office. and has failed all his tenure during commissions fetes, perquisites, neglected pay treasurer provided to the and emoluments was that “as based, prayer defendant, Thus law.” * * * to account to the recorder, compelled clerk and commissioners defendant, the board for all commissions Pueblo, perquisites, issuance office collected for' the and emoluments title, licenses, chauffeur’s operator’s of certificates taxes specific ownership licenses for the collection Defendant, Pueblo.” motor vehicles on is, been, clerk arid recorder admitting that he by plaintiff, of Pueblo alleged answering sufficiency thereof complaint, challenged amended which relief can be upon granted, to state claim answering, denied Further generally. alleged *9 Motor of Department Vehicle that, agent “as of Colorado, applicable State of under the provisions issuance cer- fees for the of statutes, [he] motor vehicle tificates of to motor opera- title vehicles, all tors’ of licenses, during chauffeurs’ licenses tenure of ownership office and has collected specific taxes date on motor vehicles since the effective of act 1938. therefor, being year That all providing thereof portion fetes and as the taxes, as well allowed to defendant for the of extra clerk hire and other payment been expenses of administration said act have over and in accordance properly distributed, paid applied with said acts. That neither funds nor any part such thereof were or are or emolu- perquisites, commissions ments of the defendant or indi- and recorder In a vidually.” further answer, defendant pleaded statute of limitations as to all matters to have alleged occurred “more six than years to the date prior commencement this action, 1946,” June wit, 10, below, was sustained and is affirmed the court in its here, a opinion in which I I ruling concur. empha- size that at ruling point because it obviates the neces- sity of extended examination and discussion of statutes other than those in force on and 1940, after June 10, which, my study convinces, are section 3, 94, chapter page 334, S.L. in so ’37, far as not changed or modified by act 1939, sections and 94, chapter 75, pages 231, ’39, S. 232, L. (§§93, 93(1) and 94, c. ’46 ’35 Supp., In C.S.A.). the order these sections appear ’46 Sup- read they plement, as follows: clerk and in “§93. recorder each State Colorado, City except revenue, of Denver the is hereby manager designated authorized for the admin- agent department istration of of this article relating registra- tion of motor vehicles in such county, provided, such authorized shall have power such appoint and motor vehicle employ registration and necessary actually issuance as are license clerks purpose for the and shall receive licenses, expenses equal defraying cents to fifteen a sum registration registration per paid Re- vehicle motor *10 paid plate plates, quiring and to be allowed a metallic or secretary provided by article; for in this as the state county provided, recorders that said clerks and further, agents secretary designated of the the authorized so provided, authorized shall serve as such state, as herein agents provisions the of this article without addi- under except provided or tional remuneration otherwise p. p. p. [L. §14; 334, §2; ’39, ’31, ’37, herein. L. L. 231, §7]
“§93(1). County the mana- recorders, clerks and and ger County City Denver, revenue the and hereby the to retain fifteen cents out of authorized moneys by specific ownership collected on each them only be the fete tax, which said fifteen shall cents allowed county manager clerks and and of rev- recorders, City County collecting enue in the and Denver, issuing specific ownership receipts therefor. taxes and by so retained class the sums of the fifth In counties defray- county shall be used and recorder necessary expenses ing in connection with the col- specific ownership taxes and administration of lection City by in the and act, but directed this manager revenue, and in all other Denver, county clerk and re- class counties above fifth city deposit general fund of said shall corder, county, county, all such sums so or of said retained necessary costs of hereunder; said collection by regular paid be administration shall warrant upon duly city or voucher sub- said p. approved. [L. §3.] ’37, mitted county Every per- “§94. clerk and recorder other or designated agent department as an authorized son for the administration provisions of this article day of the fifteenth each shall, on or before calendar moneys department month, all fees and transmit to the by of this ar- such under during except preceding ticle calendar such month, specifically sums as are this authorized article together complete a retained report said with clerk, registered of all vehicles licenses issued all county during previous reports in said month, said report to be on blank made sheets to be furnished free department. provided It further agents deposit clerks and recorders or shall other weekly moneys all received administration other motor vehicle license law with respective treasurers of counties, their and take a. re- ceipt moneys .kept separate therefor, said to be fund treasurers, and the clerks and agents recorders or other shall be held liable for the keeping depositing safe county of such funds after so them. Said accept moneys
treasurers shall all tendered to *11 county deposit them the clerks as in this section provided. day orOn before the fifteenth of each calen- county agents month, dar the clerk and recorder or other department together of the motor vehicle shall send monthly report depart- his with to the motor vehicle county ament warrant on drawn the treasurer of his county, payable department covering the to on demand, deposited the amount funds that have been county previous with the treasurer the month, and pay treasurer shall such warrant on demand presentation legal and same holders thereof. p. p. [L. ’31, 495; §15; L. ’39, §8]” 232, Considering sufficiency plaintiff’s allega- that the formally challenged by tions defendant, the over-all question any part Do the is, or funds, thereof, which from arise the administration of “The Motor Vehicle Department” belong to the several counties? in Or, county? “Department,” instance, Pueblo The reads Secretary acting statute, the directly consists “of the of State, through duly or agents authorized officers, agents? department’s In employees.” areWho currently, as the statute City Denver, in sev- manager provides, revenue, it is the county clerk and recorder. it is the other counties eral pertaining motor vehicles In the administration short, pro- In interest is a a function. state, not designated moting clerks said state service, although functioning agents and, official, state as the rendering the expense in clerk hire involved of extra charge against proper constitutes a state service activity receipts counties, in several from the state’s purpose, agents may “retain” for and which the they provides specifically receive statute shall pr'emises. compensation In for their own services it fairness to defendant therewith, connection as in claim, claimed, should be he nor does he stated, has not secretary or as state, that, as any representative capacity whatever, or or clerk, personally, in compen- any he is or entitled of said prem- all, otherwise, sation at for his services inexplicably, respectfully I Still, submit, ises. opinion proceeds theory on the that defendant court’s compensation does claim for such cites services, it County, and reviews Glaister Carson 22 Colo. v. Kit point other on App. case not 123 Pac. such, hypothesis. involved, officer There, capacity received the fees whatever, in no other moreover, question office, and, of his virtue statutory salary already although had received his sought retain, the sur- claimed, nevertheless full, plus county, claiming right. himself, fees for *12 sought to recover the excess fees from the otherwise, prevailed. defendant, Here, clear, as is official, Department, statutory agent a of Motor Vehicle administering activity agency, engaged a state state therein—only county being (his in nowise interested complaining), has collected the “issuance state, not operator’s vehicles, motor vehicle li- title to motor throughout censes, licenses,” and chauffeur’s etc., years encumbency county clerk, and since “spe- when the effect, law in relation thereto into went Although ownership cific taxes on motor vehicles.” requires deposit law the clerk make the funds arising part county treasury, from such no collections belongs county,
thereof to the nor such funds county treasury be withdrawn from the board of county only commissioners, but whose warrants must run in favor of the state motor department. By vehicle means thus devised the funds treasury, they belong, reach the state where and from they may whence be disbursed. Before the clerk de- posits county treasury, funds however, purpose discharging expense for the involved in acting agent as the state’s in his clerk shall per deduct therefor, and fifteen retain, cents item of “registration (§93), of motor vehicles” and the like fee per “specific ownership §93(1). item of taxes” collected. adjusted directly The fees mentioned in section 93, are department, the state motor vehicle while as to the 93(1), assuming fees mentioned in section differs it ma- terially taxpayer may complain, or in the a sense that myself language I shall later, which address is em- ployed plausibly may argued from it be fees, that the such, interested in the it hence, (or taxpayer it) may require clerk, state, account to the board of com- missioners, etc. analyzing present
Before the statutes involved in the inquiry, emphasize it is towell therein, that neither nor any provision earlier statute, is there funds arising from the administration law, shall inure to the benefit of the several counties. While certain (statutes supra) of the law clerks cited specifically right compensated are denied the granted compensa- therefor, and treasurers, not required tion, are to aid the state in such administration *13 arising collecting by safeguarding therefrom, funds represent county coun- not or serve their such officers do they other than ties in the nor are accountable matter, motor to state. of the In the administration the short, acting through by, its and for state, vehicle law agents. of the agent county clerk col- Should the state’s fail to particularly, state, lect in behalf the and, of should county neglect deposit to the he makes in the collections treasury, may proceed against the not the state, pay fail the to him. the treasurer Or, should deposited him vehicle the state motor with to funds so required state, department law, in manner may require county commissioners, of not the board payment. a does sense, therefore, no material such In arising from in funds the adminis- have interest weightéd such, is it involved, nor, of the tration law authority, in thereto. duties, or clothed with relation with minutely the somewhat examine in order now to It is applicable particularly in- to sections of law quote clarity quiry. I shall from of In the interest quoted of italicize some instances and in statutes, inception Practically law, language. from the agency represented in th'e state clerks have provisions of this article of “the matter administration relating registration sev- motor vehicles” their required, perform §93. “such To duties eral counties. ap- power shall have the authorized point employ” clerks, etc., “and shall receive expenses defraying equal purpose fif- a sum ” registration per paid “to etc., cents teen secretary §93. paid state,” etc. be allowed and By 93(1), clerks effective until section “collecting duty specific given owner- added were ship retain taxes,” “authorized to fifteen cents and w'ere specific moneys them on each out ownership tax” cover “costs said collection (not §93) administration,” and under this section under the clerk Pueblo, in counties the class de- “shall * * * posit general all sums fund necessary so costs of col- hereunder; retained regular paid lection and administration shall * * * duly *14 county, upon sub- warrant of said vouchers approved.” provides the mitted 94 that Section agent department the clerk, as an for “authorized of the provisions administration of or article on shall, the of this day month, calendar before the fifteenth of each department moneys the col- transmit to all fees by agent lected such" under the this article during except preceding the calendar such sums month, by specifically as are re- article authorized to be county together complete said tained report,” with a clerk, provides
etc. That section that also the clerks “deposit weekly moneys shall all received the admin- istration of this other motor vehicle license law county respective with counties, the treasurers of their receipt moneys kept therefor, take a said to be ain separate county fund treasurers,” and thereafter county (agent the department) clerk of the “shall not * * * keeping held liable the safe of such funds. day On or before the fifteenth of each calendar month” department the clerk shall send the to monthly report county and a “warrant on drawn county, payable treasurer department to the on covering demand, the amount of such funds that deposited county have been pre- with said treasurer month,” vious etc.
Considering inception from the act, legislature contemplated county—activity, a state—not a attempt (§93[1]), subject to the admin- “specific ownership istration of the to collection taxes” promotive control, limited no sense county’s surprising it not fortunes, is. that the board of commissioners of Pueblo voiced its wish responsibility to exercise of abstain from in a matter did not concern the such, and moved granted from action. be dismissed motion That opinion states, ruling, court its as the below, to which provides “plaintiff object.” 1937act did not cents” (state’s agent) fifteen “retain shall cover per but to nor for his item, himself, the owner- administration” of collection and “costs clumsy ship adds the tax and then law, features pay “re- provision requiring the state’s expend county treasury, it tained” amount into the theory thereof the sum owed on pay agent, its war- should the same state’s which it pertain although 93(1), both rants. Sections 93 and particular are in- the motor indicated act, vehicle study inconsistency, my consistent. This manifest Assem- became the 1939 General convinces, evident to year emphasized bly, (§94), it the act of that law the motor vehicle anew that the administration of ’entity having, only public or to control, is of state arising, arise, and to from in funds have, interest *15 Pueblo operation that since follows, course, thereof. It in re- can interest has, have, no such, as activity, ceipts its board of the state as we have willed, só, if so not commissioners, allegations corresponding proceeding those on seen, present so, a for- action, maintain the could not here, taxpayer, may plaintiff, Con- maintain it. as not tiori, sistently, challenge convinced, as I am to the suffi- allegations ciency plaintiff’s well-founded, that, is justifies judgment trial court’s of dismissal itself, in action. only insuffi- foregoing does all. Not is not But the appears allegations appear, de- ciency also but it 56(b), pursuant C. P. proceeding Rule R. fendant, supporting affi- timely, with motion, filed a Colo., and supported judgment. summary motion, The davit, openly plaintiff’s counsel the effect that as was to stated, expect prove, and does not cannot “he concedes, that, to prove, Pueblo, or the State either the money on account lost whatsoever Colorado, has things complaint alleged.” of the Incidentally, in matters and be so far as the state mentioned, plaintiffs gratuitous, concerned, concession is for that entity complaining, party. is not nor is it a
Why, respectfully I submit, should right accorded continue the veteran to burden public repeat- servant made chosen and here, edly by a rechosen free electorate to the office of clerk harassing, annoying, in recorder his with expensive litigation? proper The record does justify plaintiff’s it, and concession of counsel marks futility Raymond thereof. Sauter, “The Honorable L. Judge part [called from a state],” distant “sitting request record recites, for and at the of the Hon- Judge Phelps, orable J. Arthur Tenth of the pronounced Judicial rulings judg- District,” made the and I ment of dismissal to have adverted. dis- tinguished jurist, proceeding after the manner of those judge-like dignity who are learned the law, and with opinion compelling reserve; delivered a from the justifying premises. bench, conclusions I com- reading. mend its justified adding appears
I feel no appears Indeed, new role. tuting pearance he a flair to have for insti- against public ap- actions In an earlier officials. prosecuting here, he was a writ error judgment an adverse in an district court action Ralph Neary to have late instituted L. removed attorney judicial from the office of district of the tenth alleged, Major Neary accepted that, district, had service “in which, forsooth, armed forces States,” of the United
operated resignation as a vacation *16 already his civil office. The trial court, stated, was People not of view, nor ex were we. rel. Flanders Neary, (2d) v. 113 Colo. 153 P. I 48. do not cite Neary theory on case that there, here, or acting, beyond scope error acted, without or what to be one of the “freedoms” citizen; but notwithstand- of the American the heritage counsel in error to employ ing right have a must prevail finance litigation, otherwise “ and, as the Neary presentation, had case.” He none ad- here, precisely none convinced, I am should be affirmed. at nisi. The judgment judged 15,888. No.
Otte Pierce. v.
(194 331) P. [2d] April 19, Rehearing 1948. June Decided 1948. denied