58 Minn. 514 | Minn. | 1894
The relator, H. G. Tracy, claiming to be the President of the Board of Education of Independent School District of Minneapolis Park, in the county of Hennepin, petitioned the District Court of said county for a writ of mandamus to compel Clayton R. Cooley, the county auditor of said county, to make, issue, and deliver to one William Radzom an order upon the county treasurer of said county for the sum of $106.12, alleging in said petition that said Radzom was the treasurer of said school district, and also alleging that said county auditor had in the month of March, 1894, appor
1. The respondent contends that denials upon information and belief are not permissible in a return to a writ of mandamus, especially when made by a county officer having no personal interest in the controversy. Several of the allegations in the return which are pleaded as an affirmative defense are stated upon information and belief. If this form of pleading is permitted, it seems to us that a public officer should certainly be allowed to do so. Many facts might exist, and transactions take place, of which he could not have the means of knowing personally or positively, and to which he in no way was a party, and of which it would be difficult for him to obtain a positive knowledge, especially without spending much time for such purpose, and which might greatly interfere with the faithful discharge of his official duties. He might be informed of such alleged facts or transactions which he believed to be true, and it would seem to be unjust that he should be deprived, through some technicalities or mere matter of form, from alleging their existence upon information and belief. Whatever may have been the forms of the proceedings at common law, in the case of an application for a writ of mandamus, is quite immaterial, as our statute now provides that no other pleading or written allegation is allowed than the writ and answer. They shall be construed and amended in the same manner as pleadings in a civil action, and issues thereby joined shall be tried, and further proceedings had, as in a civil action. 1878, G-. S. ch. 80, § 9. The principal reason for the common-law rule that the denials or affirmations in a return on mandamus must be positive, and not on information and belief, was that such return was conclusive, and could not be traversed. But, under our statute, this reason no longer exists, — a fact which accounts for the change in the rules of pleading. Our statute does not expressly prohibit the pleader from inserting, in his pleadings, allegations upon information and belief.
First, a denial of each allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief;
Second, a statement of any new matter constituting a defense or counterclaim, in ordinary and concise language, without repetition. 1878, Gr. S. ch. 66, §§ 91, 96.
Now, the matters stated in the answer upon information and belief are intended as a defense to the allegations in the writ. The existence and materiality of the facts so stated are pleaded and brought home to the notice of the relator, even though alleged upon information and belief. The law requires good faith on the part of the pleader, and an accurate statement of the facts-may be alleged under an allegation upon information and belief. The attorneys for the respondents say in their brief “that there can be no question that the ordinary modes of pleading and verification have come to be a farce as to furnishing any sanction for their truth,” and yet they insist that a public officer, by reason of the position he holds, should be compelled to deny positively the controverted allegations of the complaint, or allege positively the matters constituting a defense.
We do not feel disposed to sanction or uphold this doctrine, for we are of the opinion that substantial justice can be done by allowing the necessary allegations of the answer to be made upon information and belief. A conscientious and honest man or public officer should not be deprived of his substantial rights because he feels that he can only truthfully allege the existence of certain facts, substantiating those rights upon information and belief. However sincerely he may believe in the existence of such facts, yet, not knowing with absolute certainty of their existence, he should be permitted to allege such facts upon information and belief, and not be driven out of court because he would not utter a falsehood or commit perjury. Under this rule there will be less untruthful verifications, and not so much of a farce, in the verification of pleadings, as complained of by counsel.
The principal question in a pleading is as to whether it is correct in substance, and not merely in form. In the construction of pleadings for the purpose of determining their effect, their allegations are to be liberally construed, with a view to substantial justice between the parties. 1878, Gr. S. ch. 66, § 106. The court is required, in every stage of an action, to disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment can be reversed or affected by reason 'of such error or defect. Id. § 127.
The statute also provides for the verification of pleadings; that is, all pleadings may be verified, and, when any pleading is verified, all subsequent pleadings. shall also be verified. The verification shall be to the effect that the same is true to the knowledge of the person making it, except as to those matters stated on information and belief, and, as to those matters, that he believes it to be true. Id. § 104.
This language is not confined merely to the denials in the answer of the controverted allegations in the complaint, but applies to all pleadings, including matters stated in the complaint on information and belief. Why else should the party be required or allowed to verify the matters stated in the complaint upon information and belief, unless he is allowed to insert such matters in that form? Evidently, this section of the statute contemplates that such allegation may be inserted in any of the pleadings; and we believe that such has been the usual practice in this state ever since its admission into the Union, in 1858. It would be a great misfortune for us now to declare that practice invalid, and we refuse so to do. See Howell v. Fraser, 1 N. Y. Code Rep. 270, and Fry v. Bennett, Id. 238.
2. We now come to another phase of this case. If it appears that for more than one year prior to July 5, 1893, this alleged school dis
But the status of the ease, as here presented, justifies us in assuming that the district was legally dissolved by the action of a sufficient number of voters at an election held for that purpose on that day. If, so, then after that date it ceased to be a legally organized school district; and even if, after that date, it had performed all •of the acts necessary to constitute it a de facto school-district organization, yet as it had not been acting in that capacity for one year after July 1, 1893, and before the filing of the petition in this case, there is no presumption of law that it was a legal school-district organization. Therefore, if Badzom was pretending to act as the legal or de facto treasurer of said district, yet his authority to •do so is expressly negatived by the fact that he was not the treasurer of .any legal school-district organization. This appearing, he had no legal right to act as the treasurer de facto or de jure of the district. And, this being so, the relator does not show himself entitled to this kind of relief, for the law is well settled “that mandamus will not be granted unless the applicant has a clear legal right, and the officer is subject to a clear legal duty, so that if either appears to be doubtful the court will refuse the writ or discharge it, if it has been issued.” Throop, Pub. Off. p. 779.
It is contended that the dissolution or the nonexistence of the district cannot be questioned by the defendant in a proceeding of this bind.
3.' The only remaining question for our consideration is this: Was the defendant concluded by the former adjudication in the prior mandamus proceedings? Conceding that the principles of res judicata may be applied equally to a mandamus proceeding as to any other final determination, we are compelled to examine the issues and causes of action tendered in the former proceedings, and to see-whether they were identically or substantially the same. The parties to the former mandamus proceeding were the same as in this action.
This proceeding is for the purpose of obtaining a writ to compel the defendant to make and deliver to said Eadzom an order upon the county treasurer for an entirely different sum, viz. $106.12, and which it is alleged was apportioned by this defendant to said district at a different time, viz. in the month of March, 1894. In the former proceedings there was no issue tendered as to the liability of the defendant to make the order for the payment of $106.12, and there was no controversy over the amount of $75.05. The court, therefore, did not pass upon the question of the defendant’s liability to issue the order for the $106.12, for that cause or subject-matter was not embraced within the writ. In the case of Adams v. Adams, 25 Minn. 72, this court held that a judgment by default upon one of several negotiable promissory notes founded upon one and the same illegal consideration, no issue upon the fact of consideration being tendered by the complaint, does not estop the defendant from setting up in a second action, upon another of said notes, the defense of illegality of consideration. If the illegality of the consideration could be set up in that case, we do not see why the dissolution of the school district cannot be pleaded in this action, and thus show the illegality of the plaintiff’s cause of action. There the illegal consideration for all of the notes existed when the action upon the first note was commenced, and judgment rendered thereon. So here the school district was not legally existing at the timé of the issuance of the former writ, nor when the alternative writ was issued in this case, nor at the present time. There one note constituted one cause of action, the other note another cause of action, and there having been no issue tendered, or adjudication as to the illegal considera
Judge Field, in his opinion in the case last above cited, uses this language: “But, where the second action between the same parties, is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted upon the determination of which the finding or verdict was rendered. In all other cases, therefore, where it is sought to. apply the estoppel of a judgment rendered upon one-cause of action, the inquiry must always be as to the point or question actually litigated and determined in the original action;, not what might have been thus litigated and determined. Only upon such matters is the-judgment conclusive in another action.” See, also, 1 Freem. Judgm. p. 458.
We are of the opinion, therefore, that the prior mandamus proceedings or alleged former adjudication do not constitute a bar to the defendant’s right to avail himself of the defense interposed herein by his answer.
The order appealed from is therefore reversed,
(Opinion published 60 N. W. 338.)