Miller v. City of Socorro

9 N.M. 416

• Court: New Mexico Supreme Court
• Decided: September 2, 1898
• Docket: No. 768
• Status: Published

Opinion

CBUMPAOKEB, J.-

-The facts in this case show that plaintiff in error, William Hezekiah Miller, appealed to the district court having jurisdiction from the action of the city council of the city of Socorro, New Mexico, in refusing to fund warrants therefore issued by city and unpaid. ‘ The appeal is under the authority of section 286, Compiled Laws of 1897. In September following the city entered its appearance to the action. On September 10, 1897, the city council appears to have reconsidered the alleged indebtedness involved in this appeal, and on recommendation of its committee appointed to investigate in regard to the pending suit ordered that the claim should be recognized and the warrants funded as provided by law. On September 13, 1897, defendants in error petitioned the district court for leave to intervene as taxpayers. The court granted the leave on interveners amending their petition by setting up reasons why they seek to intervene and by giving reasons why the city will not properly defend, etc. From this amended petition it appears that the original disallowance of the claim on which appeal was based was for irregularities and fraud in the issuance of the warrants, that the meeting of the council of the city of Socorro held on September 10 was illegal, and that the council attempted with fraudulent intent to impose an unjust debt upon the city of Socorro in total disregard of the rights of taxpayers and interveners and that they fraudulently failed and neglected to interpose a proper and legal defense to the controversy involved in the appeal. On being admitted to defend, the defendants in error interposed the plea of the statute of limitations. Plaintiff in error moved to strike out amended petition and plea, which motion was overruled. Thereupon plaintiff replied to defendants’ plea and joined issue upon the statute of limitation and upon trial the court rendered judgment against plaintiff in error. Motion to vacate judgment was overruled and the plaintiff in error brings the record into this court on a writ of error.

The assignments of error are as follows:

1. The court erred in overruling the plaintiff’s demurrer to interveners’ amended petition of intervention.

2. The court erred in overruling the plaintiff’s demurrer to' interveners’ plea of the statute of limitations.

• 3. The court erred in finding that the statute of limitations applied to municipal or city warrants or orders, which are the basis of this action.

4. The court erred in sustaining the plea of the statute óf limitation plead by the interveners when the same was not the plea of the defendant city of Socorro.

warrants: action: interventíon. The first important question in this case is as to the right of defendants in error to intervene in an appeal taken under section 286 of the Compiled Laws of 1897 by one aggrieved. by the action of the city of __ ' _ . . ¡Socorro. Under sub-section 5 oi section 2685, Compiled Laws, New Mexico 1897, it is clear that one having or even claiming an interest in a matter in litigation may be made a defendant,and by section 286 thereof, the statute on which the plaintiff bases his appeal, any taxpayer as well as a claimant is specially granted the right of appeal to the district court. Under sections 2947, 2948, 2949, “Any person who has an interest in the matter in litigation in the success of either of the parties to the action or against both, may become a party to an action between other persons, either by joining plaintiff in claiming what is sought by the declaration, or by uniting with the defendant in resisting the claim of plaintiff, or by demanding anything adversely to both the plaintiff and defendant, either before or after issue has been joined in the cause and before the trial commences.” The plaintiff in error, not having made these interveners defendants and they being real parties in interest, under the statute cited, they may be permitted to intervene, which obviates the necessity of other vexatious and expensive appeals where the controversy can be entirely litigated under the original appeal. Therefore we can not escape the conclusion that defendants in error had the right to intervene.

lNnmftIdonION: Finding no error in the action of the court in permitting the intervention, we must determine whether defendants in error under their plea of the statute of limitations could bar a recovery by plaintiff in error in this action. Having seen that interveners’ interest is a lawful one, it follows that they had a right to interpose the defense of the statute of limitations to the action. It appearing from the record in this case that all the warrants involved in this claim were issued and presented for payment, and indorsed “Not paid for want of funds” prior to the year 1887, we think the reasoning in the case of Cross v. Board of County Commissioners, decided at this term has application here. Had the city of Socorro on presentment of the warrants then absolutely refused to pay the same, there can be no doubt that the cause of action accrued on the date of such refusal, and the city would have been liable instanter. But from the record in this case it appears the court found that the refusal was based on the “want of funds.” The plaintiff in error has not set up in his petition for appeal nor in his reply to interveners’ plea any facts in explanation of this long delay of ten years or more since the date of the city’s indorsement upon the warrants of not paid for want of funds, and this court will presume, no allegation to the contrary appearing, that the finances of the city were on such basis that during at least some time in the four years preceding the six year period of the statute of limitations, which elapsed between the indorsement on the warrants by the city and the bringing of this action, the city had funds to pay these warrants, and a municipal corporation not being such a debtor as is charged by law to seek its creditor, it was incumbent upon the plaintiff in error to set up sufficient facts to overcome the presumption that had these warrants been presented for payment within the time mentioned, they would have been paid.

We can discovei no error on the part of the court below in entering judgment against the plaintiff in error on his petition to fund the warrants here involved, and the case is therefore affirmed.

Mills, C. J.; Leland, Parker and MePie, JJ., concur.