25 Colo. App. 280 | Colo. Ct. App. | 1913
delivered the opinion of the court.
October 2, 1909, appellee, as plaintiff, filed its complaint in the county court of the City and County of Denver, to recover from defendant (appellant) a judgment in the sum of $933.32 with interest, for balance alleged to be due for and on account of water delivered to defendant for irrigation purposes during the years 1903, 1904, 1905 and 1906 respectively.
The complaint contains four causes of action, claiming in each the sum of $333.33 for water delivered and services rendered in delivering the same for the year,
Thereafter, on December 24, 1909, defendant filed his answer, admitting plaintiff to be the owner of the ditch or canal mentioned in the complaint, and.that the water was furnished by plaintiff, at the request of defendant, at the times -specified in the «complaint;. but denying each and every other allegation therein, except those alleging payment by defendant of $100 each of the years from 1903 to 1906 inclusive. The second, third.and fourth defenses of the answer are about the same, except as to dates. They each allege a written contract between plaintiff, and defendant, made prior to the irrigation season of 1902, whereby plaintiff was to carry arid "deliver 1 1/9 cubic feet of water per second of time,- from the Dolores river to the lands owned by defendant, for the sum of $100, which defendant paid, and which contract price was not thereafter changed; that in the spring of 1903, 1904, 1905 and 1906, respectively, plaintiff’s agent sent defendant a notice stating that $100 was due plaintiff from defendant in advance for delivering to defendant 11/9 cubic feet of water for the irrigation season of that year; that defendant paid the same and received from plaintiff a receipt therefor; that no further demand was made by plaintiff for furnishing water as aforesaid, up to the time this action was brought.
Replication was filed, denying (with some slight admissions) all new matters pleaded. Plaintiff recovered judgment, founded upon an instructed verdict which the court ordered the jury to return.
The first and second assignments of error relate to the action of the court in refusing to allow defendant to
"Whether or not the county court abused its discretion in refusing defendant permission to file the amended answer depends largely, upon the effect to be given to the proceedings before the county commissioners on February 26, 1903, wherein they fixed a maximum rate of $90 per cubic foot per second of time for the irrigation season of each year. This proceeding defendant sought to plead as a defense to the action. If it constituted a good defense, its exclusion amounted to a denial of a trial of the cause on its merits. It was not a technical defense. The proposed amended answers allege in part that on January 6,1903, The Montezuma Water & Land Company (appellee here) presented its verified petition to the board of county commissioners of Montezuma County, asking the board to fix a reasonable maximum rate of compensation for water delivered to consumers by its ditch or canal; that on the filing of the petition, the board, by order, fixed February 24th as the date when it would hear all parties interested in the matter; that within ten days thereafter petitioner caused printed copies of such order to be securely posted in ten public places throughout the water district; that an affidavit of such posting was filed with the board; that ón February 24th hearing on the petition was begun before the board; that such hearing was continued to the following day and again •continued to the succeeding day; that upon the last day, February 26th, and after the board had heard and exam
Section 8, article XVI, of the constitution, reads as follows:
“The general assembly shall provide by law that the board of county commissioners in their respective counties shall have power, when application is made to them by either party interested, to establish reasonable maximum rates to be charged for the use of water, whether furnished by individuals or corporations.”
In conformity with this section the legislature enacted the four sections above cited, and therein provided a full procedure for establishing a reasonable maximum water rate by the board of commissioners. It is clear from the constitutional section quoted, that neither the legislature nor any court has power to fix a maximum rate to be charged for the delivery of water; and further, the board itself cannot of its own volition fix such rate. Its action can only be invoked upon petition of an interested party. Both by the constitution and statute the important duty of fixing a maximum rate is vested exclusively in the boards of county commissioners of the several counties. By said section 3265 the board is commanded each year at any regular or special session to
It further appears from the amended answers that
Hpon the question as to what was a proper rate for that district, the lower court exhausted its power in declaring the rate of 1895 void. It cannot Be said that it had power to fix a maximum rate or any other rate for delivery of water. The decree of the court, however, went further than to declare the rate void. It enjoined the Board from in any manner enforcing or attempting to enforce the maximum rate fixed By it. There is nothing in the constitution or the statutes that we can find which charges the Board of county commissioners with the duty of seeing that its order so fixing the maximum rate is obeyed and followed By carriers or those furnishing water in the district. Inferentially, at least, the legislature appears to have relieved the commissioners from such duty, for, in said secs. 3273-4, it imposed a stringent and severe penalty upon any person or corporation refusing to deliver water at the maximum rate so fixed, and declared such refusal to Be a misdemeanor,
Even if it be assumed that the decree of the district court was in force, notwithstanding the appeal taken therefrom (not necessary to decide), how can it be said that the commissioners were violating the injunctive feature of the decree in proceeding,-in 1903, under their statutory powers and duty to fix a maximum rate? As above shown, the commissioners in that proceeding were engaged in hearing evidence and proofs for the purpose of ascertaining therefrom what a reasonable maximum rate should be in that water district at that time. It is not pretended nor even intimated that they were attempting- to compel the petitioner, The Montezuma Water & Land Company, or anyone else, to supply water to consumers-in the district at a rate not in excess of that previously fixed by them in 1895, viz., $90 per cubic foot. Hence, we are unable to see, upon anything in this record, how their action in that proceeding can be construed as a violation or defiance of the order of the district court or the injunctive. feature thereof. In fixing the maximum rate the commissioners were acting within their statutory powers. The order made by them fixing the rate could not be assailed collaterally, and, not having been attacked by a direct proceeding in a competent court to set it aside, and there being no showing or claim that the order or proceeding is void for lack of jurisdiction, or clear excess of authority, the rate fixed became
As to the duty of a court where a motion is made to amend pleadings, it is well settled that the granting or denying of such motion is generally left to the sound discretion of the court. However, it seems to be the usual practice for courts to indulge in more liberality in permitting amendments to answers than to complaints. The brief extracts from authorities next hereinafter cited will be sufficient to show the general views of our own appellate courts on the subject, vis.:
In Miller v. Thorpe, 4 Colo. App., 559, 36 Pac., 891, it is said:
*290 “The appellants are quite right in their claim, that the power which the code gives to the court to permit amendments should be broadly and generously exercised to further the interests and protect the rights of litigants.”
From Sellar et al. v. Clelland et al., 2 Colo., 532, the following.:
“The great object of a trial is to secure justice to the parties engaged in the suit. Substantial rights should never be sacrificed to mere forms, and amendments should at all times be liberally allowed when they do not lead to surprise 'and injury.”
The court says, in Cartwright et al. v. Ruffin, 43 Colo., 377, 96 Pac., 261:
“From necessity, greater liberality exists in allowing amendments to answers than in amending complaints. Plaintiff may always, in the absence of a counter-claim, or cross-complaint, dismiss his action and begin anew; *= * * But the defendant is not so fortunate. If by mistake he pleads an ineffective or insufficient defense, to say that he may not, by amendment, bring in a good defense, is to inflict a drastic penalty for his inadvertence or mistake; # * * Hence it is that, especially under code practice, the courts are more liberal in permitting the amendment of answers than in allowing the amendment of complaints.”
Lewis v. Jerome et al., 44 Colo., 459, 99 Pac., 562, 130 Am. St., 131, was an action wherein judgment in damages was obtained by the heirs of Jerome, plaintiffs, against Lewis, for having (as claimed) deeded certain land to Kitty M. Jerome without authority or right for so doing. After judgment for plaintiff, motion for new trial was filed by defendant, who at the same time-asked leave to file an amended answer, alleging an additional defense. The motion was supported by affidavit, which
Other similar rulings could be cited from our own appellate courts, as well as those of other jurisdictions, but no good purpose could be served by extending the list.
The desideratum to be reached in, all legal controversies is to correctly determine the substantial rights of the parties litigant, and nisi prius courts can invoke no safer rule than to permit liberal amendments to pleadings, which tend to secure a full and fair trial upon the merits, when the same can be don'e without imposing undue hardships upon, or prejudicing the rights of, the party opposing such amendments. In the case at bar, affidavits were filed in support of the motions to amend, which showed that defendant was a non-resident of Montezuma county in 1903, when the commissioners fixed the maximum rate, and had no knowledge of such.proceedings until-a few days before the trial, and before the motion to amend was interposed. We cannot see how plaintiff could have been surprised or prejudiced by allowing the amended answers to be filed, as appellee here was the petitioner in the proceedings before the commissioners in 1903, and must necessarily have had full
Whether or not the order of the board of commissioners was admissible in evidence without being pleaded need not be decided here, as it was offered and upon plaintiff’s objection excluded. Our ruling that the plea should have been allowed carries with it the corollary that it is admissible when pleaded, unless defeated for reasons not appearing in the record now before us.
There are a number of other assignments of error relied upon by appellant, which have been ably discussed pro and con by counsel for both parties, which we deem unnecessary to notice, as the conclusions we have already reached are decisive of this appeal.
Entertaining the views above expressed, the judgment will, be reversed and cause remanded.
Reversed and Remanded.