70 P.2d 353 | Colo. | 1937
THESE parties appear here in the same order as in the trial court and are hereinafter referred to as plaintiff and defendant, or as Schoolfield and the district. The county treasurer, originally a party defendant, was discharged on demurrer.
Schoolfield sued on six warrants drawn on the general fund of the district; three for $55 each and three for $35 each. The district answered with three defenses, the first of which was the statute of limitations. Trial was to the court without a jury. At the close of plaintiff's evidence defendant's motion for a nonsuit was sustained and judgment entered accordingly. To review that judgment plaintiff prosecutes this writ. We need consider but two questions raised by the assignments: 1. Was the plea of the statute in proper form? 2. Was it available?
1. The statute is thus pleaded: "That the cause of action therein stated is barred by the statute of limitations of the state of Colorado for the reason that this action was not commenced within six years next after said cause of action accrued." The objection raised to the plea is want of facts.
[1, 2] Since the right given by the statute is special and personal it is presumed waived unless specially pleaded. The true reason for this rule is the prevention of surprise. Adams v. Tucker,
[3-6] 2. One of these warrants was issued in November, 1890; three in December of that year, and two in January, 1891. Shortly thereafter they were presented for payment, which was refused for want of funds. Plaintiff acquired them in 1926 and 1927. He was himself county treasurer from 1929 to 1934. Between 1910 and 1929 defendant had in the general fund of its treasury more than enough money to pay these and all previously registered warrants, and therefrom others of subsequent registration were taken up. The complaint herein was filed February 25, 1936. No record was found in the county treasurer's office of the call of these warrants. The only record of other calls was a small book in which the calls were entered by pasting proof of publication, but in former years by pasting newspaper clippings. Section 8801, p. 2246, C. L. 1921, makes it the duty of the county treasurer, when available funds of the district are in his hands, to pay warrants in the order of their registration, and when he has $200 so available to "call" warrants by twenty days' newspaper publication *59
of notice, after which the interest ceases. Plaintiff's position is that no call was made; that for the purposes of said section 8801 the county treasurer is an officer of the district; that his neglect was the neglect of defendant; and that by reason of these things the district cannot avail itself of the benefits of the statute, since the warrants do not become payable until called, and in the absence of such call the holder's cause of action accrued only when suit was brought. In this we find defects both of fact and law. No statute requires the treasurer to keep a record of his calls of school warrants. The record here was so negligently kept as to be no evidence that no call was made. The general presumption is that officials do their duty. That the county treasurer is an officer of the district is contrary to our conclusion in People ex rel.v. Koenig,
Since funds more than sufficient to pay these and all prior warrants were in the treasury much more than six years preceding the bringing of this suit, the statute pleaded is applicable and the action is barred.
The judgment is affirmed.
MR. JUSTICE KNOUS and MR. JUSTICE HOLLAND concur. *61