84 P. 1002 | Cal. Ct. App. | 1906
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *250 This is an application for a writ of mandate commanding defendant, as treasurer of Modesto irrigation district, to pay the interest on certain bonds. The petition sets forth the corporate organization and capacity of the district, the official relation of defendant thereto, and his refusal to pay certain interest coupons upon demand, notwithstanding that he had sufficient money in his hands available for such purpose. It appears therefrom that plaintiff *251 is the owner and holder of four bonds for $500 each, issued by said district on January 1, 1902, bearing interest at the rate of six per cent per annum, and that certain interest coupons attached to said bonds were due and payable at the time demand for payment was made. That he also owns twelve interest coupons for $15 each, which were detached from bonds for a like sum, bearing interest at the same rate, issued January 1, 1890. The aggregate sum claimed is $1,096.40, of which sum $162.40 is for interest on the interest coupons above mentioned, accruing after said coupons became due and payable. It is alleged generally that the payment of the several sums included in the total demand is a duty resulting from the office held by defendant, and that the plaintiff is the party beneficially interested in such payment. A general demurrer to the petition was overruled, and the defendant, answering, traversed all the averments of the petition, save those relating to the corporate capacity of the district, and defendant's official connection therewith. All of the denials, and most of the affirmative averments, were based on want of information or belief, but it was positively alleged that defendant at no time had in his hands money applicable to the payment of plaintiff's claim. The court sustained a demurrer to several special defenses set up in the answer, and the cause was tried on the pleadings above epitomized. Judgment was entered commanding the defendant to pay the full sum demanded, and he appeals from such judgment and from the order denying his motion for a new trial.
We will notice only the assignments of error and specifications of insufficiency of the evidence discussed in the briefs and argument. (Humphrey v. Pope,
It was urged in the petition for rehearing that the facts pleaded and proven show that a number of the interest coupons became due and payable more than four years before the action was commenced, and it is argued that defendant as a public officer was bound to refuse payment as to such coupons. In other words, it is said that under the facts it was not defendant's duty, specially enjoined by law, to pay the "outlawed" coupons. As a conclusion from his premise and argument, counsel for appellant earnestly insists that in a proceeding of this kind against an officer of a municipal corporation, the bar of the statute of limitations is always an issue whether it is pleaded or not. At the outset, we were impressed by the plausible and able argument of counsel in support of his position, but careful analysis and research have convinced us that the rule is, and should be, the other way. For many years, able lawyers in this state and elsewhere contended that a municipal corporation held its funds as a trustee for those having demands, for the payment of which the money was provided, and that it could not plead the statute of limitations against a person having a claim which *253 was payable out of such funds. It was argued that a municipal corporation, like a bank, was simply the custodian of special funds, holding the same for the benefit of those who were or might be entitled thereto.
It is apparent at a glance that this contention was diametrically opposed to the contention here. The courts, however, declined to adopt that extreme, though reasonable, view and we understand the rule to be that the defense of the statute of limitations is a privilege personal to the debtor, and that a municipal corporation, in common with other debtors, may waive or avail itself of such defense in any legal proceeding. (Code Civ. Proc., secs.
It is next contended that there is no evidence tending to show that the coupons were ever signed by the secretary of the irrigation district. As the denials touching this phase of the case are based on information and belief, there was no issue on that point. (Mulcahy v. Buckley,
The next point made is that there was no evidence to show that defendant had in his hands money available for the payment of the coupons when demand was made. As the coupons held by plaintiff were for interest on outstanding six per cent bonds, it seems clear that a large portion, at least, of the sum of $12,442.50 in defendant's hands at that time, was available for the purpose of paying them. (Carter v. Tilghman,
We find no error in other rulings on the admissibility of evidence, and it could serve no useful or beneficial purpose to discuss each alleged error in detail.
Mandate will lie for the enforcement of the right here asserted. (Code Civ. Proc., sec.
The plaintiff was not entitled to interest on the interest coupons from the date of their maturity, or the demand made. (Davis v. Porter,
The order denying a new trial is, therefore, affirmed, and the judgment appealed from is hereby modified by deducting therefrom the sum of $162.40, the amount of interest erroneously included therein, and by striking therefrom the provision for interest from the first day of January, 1904. As so modified, the judgment is hereby affirmed, the respondent to pay the costs of this appeal.
*256Chipman, P. J., and Buckles, J., concurred.