| Ohio | Dec 15, 1876
In the view that we take of the ease, we will first ascertain from the record the nature and extent of the claim of James Myers, the plaintiff below, and also what persons, or rather what class of persons, he represented in bringing the suit fpr himself and two hundred other's. These being ascertained, we will, in the second place, inquire whether James Myers is estopped by his acquiescence or laches from denying his liability to pay the assessments made on his lands to pay for the completed improvements, and if so, whether those whom he represented are likewise estopped.
James Myers, the plaintiff below, was one of the persons named in the original report of the viewers and surveyor, made in September, 1866, as a land-owner whose lands would be benefited by the improvement. The whole number returned for assessment in this report was 257, and, for convenience, these may be denominated the first class. Eor the present, passing over causes which occasioned delay in letting the improvement to contract, and suspending work on it after it was let to contract, we come to the order of the commissioners, made on the 5th of January, 1870, appointing a committee to apportion the estimated expense of the improvement upon the lands reported by the viewers, and all other lands within tioo miles' of the improvement which weré benefited thereby. The report of the first committee was set aside, and another committee for the same purpose appointed, whose report was made and confirmed in October, 1870. This report contains the names of 209 land-owners not previously returned, whose lands are within two miles of the improvement, and which, in the opinion of the committee, “ will be benefited thereby,” and ought to be (and were) assessed to pay the estimated expense of the improvement. These 209 land-owners constituted the second class:
It will be seen at once that the legal rights and liability of these two classes, at the time the suit was commenced, were not necessarily the same.
The rights and liabilities of the first class depended upon
The suit was brought by Myers under the 37th section of the code of civil procedure, which provides: “ When the question is one of a common or general interest of many persons, or when the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may site or defend for the benefit of all.”
In his petition he avers that he is a landholder, resident of the’ county, and that he “brings this suit on his own behalf, and on behalf of other .resident landholders whose lands have been assessed, to the number of 200, or thereabouts ; that the number of resident landholders having an interest in this suit and affected by its results amounts to 466.”
It is plain that the suit was brought on the idea that the two classes were intérested in common, and on this ground Myers assumed to represent 200 of them, without distinction ; and the final decree of the court shows that he was permitted to represent both classes. It is shown above that the two classes did not necessarily have a common interest in the subject-matter of the suit; and in the absence of a statement of facts showing that, there existed some other ground for permitting one to sue in his own name in behalf of many others, Myers could only sue in his own name in this case, in behalf of himself and others of his own class, viz., the first class, and of these, only those named as plaintiffs, or served with process, as defendants, would necessarily be bound by the decree.
Although the testimony shows that the viewers and surveyor returned two parcels of land belonging to Myers as liable to assessment, and that the last apportioning committee returned additional lands belonging to him for assess
If Myers had claimed to represent both classes, by reason of these facts, he should have set them out, and founded his claims upon them, so that the question of his right to do so might have been .raised and determined. But the question is settled by allegations in the last two clauses of the second defense in this case, which defense sets up the proceedings and decree in the Walker Ellis suit, in bar to the right of Myers to maintain this action. The allegations alluded to are as follows :
“ The plaintiffs and defendants in said action claimed to, and actually did represent the rights and interests of the plaintiff in this action, and all those having a common interest with him, and whom he represents, except the 209 resident land-owners, who have been by the county commissioners added to the list of persons to be assessed to pay for said improvement, since the order directing the same to be made was first entered upon their journals. There is another action now pending in the district court of this county, wherein said 209 persons seek the same relief for the same, among other causes, as that claimed by the plaintiff for himself and those for whom he brings this action.”
The distinction between the two classes is here clearly drawn. The reply to this defense did not deny any of the allegations above quoted, and hence they are admitted to be true. If the 209 constituting the second class were separately seeking the same relief as Myers, on substantially the same ground, in an action then pending, surely Myers had no right to claim to represent them, under the very general allegations of his petition, and we find that he could-only have been representing landholders of the first class. The question of bar or estoppel by record, as raised by the issues on the second defense, need not be discussed, as the decision is placed on another ground. It is proper to say, however, that Myers is not named, either as a party plaiutiff’ or defendant in fhe Ellis suit, and that by his reply to the second defense he denies that he was a party thereto.
It is further to be observed that, under the act of May 13, 1868 (S. & S. 677), in any action brought to enjoin the collection of any assessment levied, etc., the court may, if there be manifest error in the proceedings, affecting the rights of the plaintiff in such action, set the same aside as to him, without affecting the rights or liabilities of the other parties in interest.
Relief can, therefore, only be granted to those who ask it, or, in other words, those who are named as plaintiffs in the petition. In the absence of this statutory provision, however, upon general principles, if the party named as plaintiff', who sues in behalf of himself and others, fails in his suit, those whom he represents must also fail, for the rights of those represented can not rise higher than those of the party named as plaintiff'.
The inquiry is therefore narrowed down to this: Was the issue as made upon the third defense (estoppel) properly found and determined by the referee ? The finding of the referee is as follows : “ 25th. I find from the facts so found as aforesaid, and I adjudge and hold, that (said road being an entirety) the plaintiffs, and those for whom this suit is prosecuted, are not estopped in law from prosecuting this action
It is supposed that the words in parentheses are intended to mean that no 'distinction could be drawn between the two classes of land-owners previously spoken of, inasmuch
The viewers returned James Myers, by name, as a landowner, and reported certain lands belonging to him for assessment. The report was filed in September, 1866, and, I repeat, that there is nothing in the pleadings or findings of the referee to show that additional lands of his have been subsequently returned for assessment.
Myers, then, had an election either to abide by and acquiesce in the report of the viewers, or to institute legal proceedings to set it aside. He elected to acquiesee. The improvement was let to contract, and the contractors commenced work upon it in August, 1867, of which Myers had notice. Again, he had an election either to commence proceedings to enjoin work upon-the improvement or to acquiesce in what was being done. He chose the latter. The work was suspended from September, 1867 (at which time one-sixth of the work had been done), till April, 1870, whén the contractors again commenced work on the improvement, of which Myers had notice, and again he elected to let the work progress without objection on his part. The work was substantially completed in the year 1870, work of the value of about $1,000 only remaining undone. After the work was thus substantially'completed, and the benefits of the improvement thus obtained, Myers for the first time, on the 29th of May, 1871, made application for an injunction, not to restrain the commissioners or the contractors from making the improvement, but to restrain the auditor and treasurer from collecting the assessments to pay for the improvement after it was made.
In equity, wherever the rights of other parties have intervened by reason of a man’s conduct or acquiescence in a state of things about which he had an election, and his conduct or acquiescence, or even laches, was based on a
Here, Myers had acquiesced for nearly five years, during which time, and it may be said by reason of such acquiescence, the rights of contractors and subcontractors to be reimbursed for labor and materials employed in making an improvement beneficial to the plaintiff had intervened, or the county had become bound for the same by issuing its bonds to the contractors. There is no pretense that there was any fraud or concealment on the part of the commissioners, contractors, or others in making the improvement ; but the principal ground upon which Myers relies for an injunction is, that the commissioners had not jurisdiction to make the order for the improvement. After an acquiescence of nearly five years, during which the work was substantially completed, on every consideration of justice and equity, Myers ought now to be estopped from denying his liability to pay his assessments for the completed improvement, and this without reference to whether the commissioners had jurisdiction to order the improvement or not.
But Myers undertakes, by his reply to the third defense, to break the effect of his long acquiescence, by setting up the fact that prior to the making of the contract for the improvement, a petition in error had been filed in the proper court to reverse the order of the commissioners ordering the improvement to be made, etc. But he does not say what the judgment of the court was; but the record shows that the common pleas court found no error, and affirmed the order of the commissioners, and that the contract was made while this judgment of affirmance was in force. The reply to this defense further states, in substance, that as soon as it became publicly known that contractors had taken a contract for making the improvement, the contractors were notified that a suit to annul the contract would shortly be commenced, and that such a suit was brought within a few weeks after the contractors com
This is an attempt to defeat the bar on the one hand, on the ground of his not having been a party to the suit, and on the other avoiding the effect of his acquiescence, on the ground of the pendency of the same suit. This he can not be permitted to do. He is estopped from claiming rights so repugnant to each other.
There is nothing shown in the record that shields Myers from the consequences of his election and long acquiescence-in what was being done toward the construction of the improvement, and we find that he is now estopped from denying his liability to pay the assessments in question, and with him all those of the first class, whom he had authority to represent, are likewise estopped.
The finding and decree of the district court is reversed,, the/injunction dissolved, and the petition dismissed.
Judgment accordingly.