144 Minn. 446 | Minn. | 1920
The two actions are predicated upon two bonds given under these circumstances: In October, 1913, the four defendants in the first action petitioned for Judicial Ditch No. 2 in Itasca county, and presented a proper bond signed by them, two as principals and the other two as sureties. The bond was duly approved by the court, and such proceedings were had that on March 2, 1914, an order was made establishing the ditch. Mr. William A. Watts had appeared as attorney for the petitioners in the proceeding. Soon after the order was made, an action to enjoin the proceeding because of alleged irregularities therein was commenced by interested parties, and Mr. Watts began to entertain misgivings as to the validity of the order because of defects in the description of the ditch and the inclusion in the drainage territory of lands belonging to a different watershed. After some consultation with the judge who had made
It stands admitted upon this record that the expenses paid by the county in the drainage proceeding exceed the amount of the two bonds. Appellants contend that, even though liability be conceded, no recovery can be had because there was no hearing of the claims upon notice to the county, citing State v. District Court of Thirteenth Judicial District, 138 Minn. 204, 164 N. W. 815. The case is not in point. It was there sought to hold the county to the payment of a claim to which it objected. Here the county recognized the expenses made as just and paid them. It could and did waive the notice of hearing on the claims so paid. Appellants do not suggest by pleading or proof that any expense paid by the county was unjust or invalid.
Furthermore, the appellants do not seem to be in a position to attack collaterally the disposition of the drainage project, instituted upon their petition and championed by them to a final determination in this court. It is said Mr. Watts had no authority from the petitioners to apply for a vacation of the order of March 2, 1914. We think that is immaterial now, for, instead of raising that point in the subsequent proceedings in the district court, they all joined in taking an appeal from the final order dismissing the drainage project, and Mr. Watts, admittedly, as their attorney, took and prosecuted the appeal. No attack was made in the appeal upon the order vacating the order establishing the ditch, nor was the procedure, up to the final order refusing to establish it, questioned. In addition, the record clearly shows that the appellant, Ralph, though at first of the opinion that they might safely rest on the order of March 2, finally consented that Mr. Watts should apply for its vacation. Ralph appears to have been the moving spirit in the enterprise and attended and took part in the subsequent hearings. The appellants, save Larson, executed the second bond in order to secure the privilege of amending the drainage applied for so as to eliminate certain lands, to secure more accuracy in the description of the ditch, and to be able to present further evidence. In view of all this, when sued on these bonds which in terms obligated the signers to “pay all the expense in case the court shall fail to establish said proposed ditch or any part thereof,” the appellants ought not now to be heard to say that the order of March 2, 1914, still stands, although a later order dismissing the whole project has been affirmed by this court upon their appeal.
Since our conclusion is that the appeal taken by the defendants from the order dismissing the ditch proceeding so bound them that they can
Error is assigned on the amount of interest included in the verdicts. The attention of the court below was not invited to the matter either at the trial or in the motion for a new trial. It cannot be considered here.
The orders are affirmed.