98 Wis. 306 | Wis. | 1898
At the commencement of the trial defendants’ counsel objected to any evidence under the complaint, which objection was overruled, and error is assigned on such ruling because the action was brought in the name of the plaintiffs alone instead of on behalf of all the taxpayers of the town; and further because there is no allegation in the complaint of a request of the defendant town to bring the action, and a refusal so to do.
It is a sufficient answer to the first ground stated, that if a defect of parties plaintiff exists — and none is perceived — such defect cannot be reached by a general demurrer to the complaint. That is elementary. Nevil v. Clifford, 55 Wis. 161.
It is a sufficient answer to the second ground urged in support of the objection that it is expressly alleged that the officers of the town, at the time of the commencement of
The next contention made, which calls for consideration, is that the claim was a legal claim against the town, because the evidence shows that the road, under sec. 1295, R. S. 1878, ivas a legal highway by reason of its having been laid out and recorded and worked for three years, notwithstanding the
But it is said that the claim for the work done on the road is an equitable claim, because the town has the road. We see no good ground for sustaining that contention. The contractor knew, or ought to have known, that no authority existed for making the contract and creating a debt against the town for work under it. So he proceeded at his peril, and cannot be helped out on the ground of equitable estop-pel, in that the town has the benefit of the road. If it be true that town officers can contract with a person for work for their town without any authority so to do, under such
- It is further said that there was no fraud or collusion shown in obtaining the judgment, therefore that the indebtedness has passed beyond the reach of taxpayers to question it in a suit in equity to restrain the collection of the judgment. Such contention can hardly be maintained in view of the undisputed evidence that the officers of the town knew the foundation of the claim when suit was brought to enforce it. They knew, or ought to have known, that it was not only an illegal but an inequitable claim. Therefore it was their duty to have defended against the claim, and their failure so to do was a fraud upon the taxpayers of the town, whom they represented. They not only neglected their duty to make a proper defense to the illegal claim, but they advised its being put into the form of a judgment. The evidence is conclusive that they colluded with the claimant to enforce payment of his claim in •that way, as the only practicable way, under the circumstances,'by which he could collect it. E. E. Cook, one of the town board, testified that he notified the owner of the claim that there was no money to pay it, and advised him to put it into the foim of a judgment; that he knew it was for work on the alleged illegal road, and that the people were never favorable to it; that the board were in favor of the claim being put into judgment. This, and much other evidence
The case falls within the principles of Nevil v. Clifford, 55 Wis. 161. That case touches this at every point and unfavorably to appellants. The circumstances there were that officers of a school district, without authority of law, contracted for the erection of a school-house. There was performance of the contract on the part of the contractor. Thereafter such officers pretended to accept such building, and caused it to be occupied and used, but without authority from the taxpayers or electors of the district.. Subsequently the contractor commenced an action to recover on the contract, and such officers permitted, judgment to be talien against the district. Suit was then brought by taxpayers (to enjoin collection of the judgment because illegal and inequitable. The court held on. a demurrer ore tenus to the complaint, that it did not reach a defect of parties plaintiff, and further, that any taxpayer, or several taxpayers uniting, or one taxpayer on behalf of all, could bring an action to enjoin the payment of a fraudulent judgment; that the contract for the construction of the school-house, being in excess of the authority of the district officers, the claim of the contractor thereon was inequitable as well as illegal; that when the suit was brought on it, it was the duty of such officers, representing the district, to defend; that their neglect so to do, and permitting the suit to proceed to judgment, was a fraud upon the taxpayers of the district; and that any taxpayer could maintain an action to restrain its payment, on the general principle that equity will entertain jurisdiction of a bill on behalf of taxpayers to enjoin the misapplication of moneys of the corporation, and that one or more taxpayers may file a bill to restrain the allowance or payment of an illegal and inequitable claim, such as a judgment fraudulently and collusively obtained.
The foregoing leaves nothing further that need be said in
By the Court.— The judgment of the circuit court is affirmed.