94 Minn. 39 | Minn. | 1904
The facts in this case are as follows: The action was commenced in 1902 against the Barber Asphalt Paving Company, as sole defendant. The original complaint alleged that plaintiffs were residents and tax
Upon the issues thus framed a temporary injunction was issued by the court below, restraining defendant asphalt company from entering upon the street abutting plaintiffs’ property, or in any manner attempting to pave the same. The injunction has at all times since remained in full force; but, after it was issued, defendant, under the contract with the city, proceeded and paved the balance of Broad street, completing the same on July 30, 1902.
Thereafter plaintiffs obtained leave to make the city of Mankato' and its officers parties defendant, and file a supplemental complaint. The supplemental complaint set up that plaintiffs were taxpayers of the city, facts tending to show the invalidity of the contract, and prayed not only for an injunction restraining the asphalt company from entering upon Broad street between Warren and Lincoln streets, but from entering upon or paving any part of the street, or taking any steps towards performing the contract for paving the same; that the contract be adjudged void because of irregularities on the part of the city in entering into the same; and that the city and its officers be forever enjoined from levying or collecting any assessments upon the abut
In the meantime the action of Diamond v. City of Mankato — an action involving the same contract — was brought by Diamond, a taxpayer, for the purpose of determining its validity, and restraining and enjoining the city and its officers from paying out of the city treasury any money on account of the same. In that action the contract was adjudged void by the court below, and the decision was affirmed on appeal to this court. Diamond v. City of Mankato, 89 Minn. 48, 93 N. W. 911. Defendant asphalt company was not a party to that action, and is not bound by the judgment therein.
Thereafter, in February, 1904, the asphalt company brought suit against the city of Mankato in the Circuit Court of the United States for work and labor performed under the contract, in which action the city interposed the defense that the contract was void and of no validity. The action was tried in the Circuit Court, and resulted in a recovery by plaintiff, the court holding that the contract was valid, and is now pending on appeal in the Circuit Court of Appeals.
In April, 1904, defendant asphalt company obtained leave, from the court below to interpose an answer to the supplemental complaint in the case at bar. The answer sets up in detail the history of the controversy between the parties, the commencement and result of the action of Diamond v. City of Mankato, and that, after the decision in that action, defendant abandoned the contract, and was released by a formal resolution of the city council from further obligations in the performance of the same, specifically denying the allegations of the supplemental complaint to the effect that it intended and threatened to continue work under the contract. To this answer plaintiffs replied, admitting the allegations of the answer contained in paragraph 8 — those just referred to — to which reply the asphalt company interposed a general demurrer.
Upon the argument of the demurrer in the court below, the parties entered into a stipulation which they agreed might be considered in connection with the pleadings and demurrer. The stipulation provided that the court might consider, in determining the demurrer, the fact that before the answer was served the asphalt company commenced an
We are of opinion that the order appealed from should be affirmed. The only question now before us is whether, in view of the conceded facts, there remain any disputed questions under the pleadings to be litigated. Counsel for appellant invoke the rule that, where it appears in an action for injunction that there is a change of circumstances after suit is commenced which renders the injunction unnecessary, it will not be granted. But the case does not come within the rule. The original action was brought against the asphalt company as sole defendant, and the relief demanded was that defendant be restrained and enjoined from performance of the contract with the city for paving that portion of the street in question which abuts upon plaintiffs’ property. Neither the city nor its officers were parties to the action, and the validity of the contract, though in a measure involved, was not the primary object of the action, except in so far as it involved plaintiffs’ property. By the supplemental complaint, however, the scope of the action was broadened. The city and its officers were made parties defendant, and the relief demanded was that the contract be adjudged a nullity because of irregularities in the proceedings leading up to its execution; that the defendant asphalt company be restrained and enjoined from performing the same; and other relief similar to that prayed for in the original complaint, and generally for such other and further relief as might seem just and equitable.
It is immaterial, too, that the city is now contesting its liability in the United States Circuit Court. The jurisdiction of the United States Circuit Court and that of the state courts is concurrent. An action may be pending there, and also in the state court, involving the same questions, and neither be a bar to the other.
Our conclusions are in harmony with those of the trial court, and its order in the premises is affirmed.
An application for reargument having been made, on January 18, 1905, the following opinion was filed:
Our attention has been called, in an application for reargument of this cause, to the case of City of St. Paul v. Mullen, 27 Minn. 78, 6 N. W. 424, wherein it is held, in effect, that, although local improvement
Whether this position is sound should not be determined in the absence of the property -owners to be affected by such a result, and we leave the question open. The owners of the property abutting the portion of the street paved are not parties to this action. And as it does not appear whether the cost of paving at street intersections is to be borne by the property owners or' the city, and as the contract expressly exempts the property owners from paying any portion of the expense incident to property belonging to the city of Mankato, plaintiffs, as general taxpayers, have at least the right to be heard upon the question whether these items of expense may be paid out of the general fund in the city treasury, or by a general levy of taxes.
Application for rehearing denied.