294 N.W. 666 | N.D. | 1940
This is an appeal from a judgment sustaining a demurrer to the complaint.
The complaint shows plaintiffs are taxpayers of Ward county, and the defendants are as set forth in the title; that for many years the county of Ward maintained what was known as "The Ward County Fair," organized under the provisions of chapter 102 of the Session Laws of 1919; that from the years 1921 to 1937, the county budget estimates were made and adopted on behalf of the Fair and taxes levied for its support; that illegal claims and accounts had been audited and allowed, excessive expenditures incurred, and illegal warrants issued for the purpose of operating said Fair; that on February 14, 1938, the board of county commissioners of Ward county, at that time comprising defendants Donnelly, Yuly, and Pierson, and the defendants Ilvedson, Dickinson, Halvorson and others, as petitioners began a mandamus proceeding in the district court of Ward county against Fred M. Brey, one of the defendants here, requiring him "to set up to the credit of the Fair Fund a sum of $33,850.76, and to sign warrants on bills and accounts against said Fair Fund approved by the board of county commissioners; and . . . well knowing that there was no cash in the hands of the treasurer of Ward county against which to issue warrants, and that there was no cash in the hands of the treasurer belonging to said Fund . . . did falsely and fraudulently represent to the said court that there was due and owing to the said Fair Fund a sum of $33,850.76," which had been collected and received for the use and benefit of the Fair; that the petition alleged the respondent in that action (Brey) had "wrongfully and unlawfully diverted the same to other funds, and expended the same for other purposes," and made other false and fraudulent representations so that these aforenamed defendants as petitioners "secured from this court (the district court of Ward county), and this court caused to be made and given on April 19th, 1938, a judgment of this court, adjudging among other things that a writ of mandamus issue and provide for the setting up of the fund" described, and that warrants be issued *374 against it, and ordering and directing the said Fred M. Brey to replenish the fund from the taxes as collected to the extent of the balance in the Fair Fund, and "commanding the county auditor to issue and sign warrants for payment of the accounts and claims against the Fair referred to aforesaid, said accounts and claims being legal obligations properly chargeable against said fund, such being the duty of the county auditor as evidenced by the law and facts found in this case."
The complaint further shows that a writ was issued commanding and directing the county auditor, the defendant Fred M. Brey, "to do and perform the matters and things in the said judgment as aforesaid by him adjudged and directed to be done and performed; and that the defendants herein named, attempting to and about to enforce the said judgment, have caused to be issued out of this court and served on the defendant Brey an order of this court directing and requiring him to show cause before this court at a time and place set, why he, the said Brey, should not be adjudged and held in contempt of this court by reason of his failure, neglect and refusal to do and perform the matters and things as in the said Judgment and the said Writ ordered, directed and commanded to be by him done and performed."
The complaint alleges that the judgment, ordering the issuance of the writ of mandamus in the action described, "is contrary to law and fact, is and constitutes and operates as a fraud upon these plaintiffs and the taxpayers of Ward county, was made and entered by the court under a mistake of fact and law, and by reason of the false and fraudulent representations made by the relators or petitioners therein, as set forth above, and is and should be held to be fraudulent, null and void, and should be by this court in all things vacated and set aside, and the defendants above named restrained and enjoined from enforcing or attempting to enforce the same, and from doing or performing the matters and things therein and thereby by the defendant Fred M. Brey required and directed to be performed."
The complaint shows that the judgment in the mandamus proceedings was entered on April 19, 1938, and served upon the defendant Brey on or about that time; that the plaintiffs in this case did not know of the institution of said action "until long after May, 1939," and that all of the plaintiffs prior to the commencement of this action *375 had at all times assumed and believed in the good faith of these county officials and relied upon them to properly perform their duties. The complaint prays that the judgment in the mandamus matter be declared null and void and the defendants herein be enjoined from doing anything ordered in the judgment.
This action was commenced on or about May 3, 1940, and the original complaint therein was served on May 7, 1940. A demurrer to that complaint was interposed and sustained. The plaintiffs thereupon amended the complaint to set forth as hereinbefore stated, and again a demurrer was interposed.
This demurrer sets forth five grounds:
The trial court sustained the demurrer and ordered judgment to that effect. Judgment was accordingly entered, and the action dismissed.
There is no merit in the first ground of demurrer. This is an action to set aside a judgment of the district court of Ward county; and if such an action may be maintained, it is very clear the jurisdiction is in the district court of Ward county. Some confusion arises from the fact that in the proceedings for the writ of mandamus, the Hon. C.W. *376 Buttz, Judge of the Second Judicial District, sat in the place of one of the judges of the district court of Ward county and determined the issues. He heard the evidence, and made and entered the order requiring the issuance of the writ. While doing this, he was acting judge of the district court of Ward county. It was not the personal act of Judge Buttz; it was the act of the presiding judge of the district court of Ward county. In this case at bar, Judge P.G. Swenson of the First Judicial District sat as trial judge; but in so doing, he was the acting judge of the district court of Ward county.
To show want of jurisdiction, the defendants cite Enderlin State Bank v. Jennings,
None of these cases is in point. In the first case cited we held that one judge "has no power to review, on the same facts, the decision of another judge, of co-ordinate jurisdiction." But the matter arose on a motion in the same case, the motion had already been determined, and the decision was final.
The Missouri Slope Land Invest. Co. Case arose out of "a situation wherein a judge in an adjoining district assumed to exercise jurisdiction in a cause pending in another district" (
In McGinnity v. Dowd,
In State ex rel. Mannix v. District Ct.
Judge Buttz had no power to determine further matters in this case unless he were again called in to sit as judge of the district court, or unless there were a change of venue to his court. See King v. King,
When we examine the other cases cited, we find the same rule holds good.
However, in this case at bar, we have an action in equity brought by different plaintiffs, against different defendants, on a different cause of action, and in the district court of the county where the judgment attacked was entered. Clearly, the district court of Ward county had jurisdiction to determine the issue, and it is immaterial who the trial judge was. He may have been one of the judges of the district court of Ward county, or one from another district required to sit in the case.
The second, third, and fourth grounds of the demurrer are deemed abandoned. This leaves the main issue — Does the complaint state facts sufficient to constitute a cause of action?
Clearly, this action is brought for the purpose of setting aside a judgment of the district court of Ward county. It is not in the same action. It is brought by entirely different plaintiffs. In the mandamus proceedings, the plaintiffs were Donnelly, Yuly, Pierson, Ilvedson, Dickinson, Halvorson, and two former county commissioners — Jacobson and Toftner — and the defendant was Fred M. Brey. In this case six of the plaintiffs in the former matter are now made defendants in this action in conjunction with Fred M. Brey — defendant in both matters. This is not an attempt to reopen the mandamus proceedings for any purpose permitted by statute. It is an independent *378 case, and the complaint shows that the judgment in the mandamus proceedings has become final.
Plaintiffs urge strenuously that this proceeding is not a collateral attack upon the judgment in the mandamus proceedings. In support thereof, they rely upon the text of 34 C.J. 520, et seq. This text has a multitude of citations, bearing upon fifty or more different points, and it would require a good-sized treatise to review and discuss all. It is sufficient to quote generally from the text, showing the distinction between a direct and a collateral attack.
"A direct attack on a judgment is an attempt to avoid or correct it in some manner provided by law, in a proceeding instituted for that very purpose, in the same action and in the same court. . . ."
"A collateral attack is an attempt to impeach the judgment bymatters dehors the record, in an action other than that in whichit was rendered; . . . In other words, if the action or proceeding has an independent purpose and contemplates some other relief or result, although the overturning of the judgment may be important or even necessary to its success, then the attack upon the judgment is collateral. This is the case where the proceeding is founded directly upon the judgment in question . . ., or where the judgment forms a part of plaintiff's title or of the evidence by which his claim is supported." (§ 827.)
Recently we had occasion to consider such remedies. In Ellison v. Baird, ante, 261,
This court, at an early date, had occasion to consider attacks upon final judgments in the cases of Kitzman v. Minnesota Thresher Mfg. Co.
At bar we have new plaintiffs. They are taxpayers of the county. In the mandamus proceeding the county auditor was the defendant. In the case at bar, he is a defendant. He is not seeking to attack the proceeding in the first case. He is not complaining of that judgment.
The plaintiffs cite Phelps v. McCollam,
In Stein v. Benedict,
In Kaufer v. Ford,
This action at bar is an action in equity to set aside a judgment which has become final. In Tuttle v. Tuttle,
Here, in this case cited, the parties were not the same as in the judgment attacked. They were reversed. In the judgment attacked, the husband was the plaintiff and the wife was the defendant. In the attacking proceeding, the wife was the plaintiff, and the husband was the defendant. She brought an independent action in another district court to set aside the decree of divorce which had been obtained against her. The parties were different as plaintiff and defendant (though the persons interested were the same). It was an action at law, but it was a collateral attack on the judgment that was rendered; and therefore a demurrer to the complaint was sustained.
This holding that the judgment rendered in the former case imports absolute verity and cannot be subject to a collateral attack is set forth in McGinnity v. Dowd,
Plaintiffs cite Williams v. Fairmont School Dist.
In the case at bar, we have an equitable action, independent of the proceedings in which the writ of mandamus was granted. The attack is made upon the judgment. It is clearly a collateral attack. The judgment attacked imports absolute verity now and is immune to a collateral attack.
Plaintiffs cite Gilbreath v. Teufel,
The complaint shows that in the proceedings wherein the writ of *382 mandamus involved was issued, the petitioners were the county commissioners, who were also the managers of the Fair. They were acting in their representative capacity; and in this respect, they represented the plaintiffs in this case.
In Ashton v. Rochester,
This proceedings in mandamus brought by the county commissioners in a matter in which it was within their jurisdiction to act is binding upon all taxpayers, in the absence of fraud, until reversed. The county commissioners were the managers of the Fair, representing the public.
In Healy v. Deering,
The people of Ward county are represented by the county commissioners in the fiscal matters of the county and as managers of the Fair, and in proceedings brought in such representative capacity, a judgment *383 therein not the result of fraud and collusion is binding upon the people. If the judgment were entered by collusion and fraud, as alleged in this case, the remedy would be to proceed in the matter where the judgment was entered, as the courts have inherent power to vacate a judgment obtained by fraud upon the court, and this is not governed by the statute of limitation of a year.
As said in Freeman v. Wood,
Here we are not considering a case where third parties, by intervention or some other means, seek the aid of the court in the proceeding itself to set aside the writ. The complaint does not state a cause of action; and therefore, the demurrer was well taken. The order and judgment sustaining the demurrer is affirmed.
NUESSLE, Ch. J., and CHRISTIANSON, MORRIS, and BURKE, JJ., concur.