88 N.W. 729 | N.D. | 1903
This is an appeal from an order and judgment granting a peremptory writ of mandamus commanding the defendant to issue a warrant -to the relator for the sum of $635.81, claimed
The respondent moves to dismiss the appeal upon the groxtnd, as alleged, that the mandate of the peremptory writ has been fully complied with, and that in consequence thereof there is no practical issue to be determined on the appeal. The facts on which this motion is based are: That a warrant for $395 was issued by the defendant and delivered to the relator ¡mediately after the peremptory writ had been served on the defendant, and a demand for the warrant had been made on him by the relator. The service of the writ and the demand were made about 4 o’clock in the afternoon of February 20, 1901. The defendant objected to issuing the warrant then for the reason that he desired to consult with the state’s attorney, who had then departed for his home, some six miles distant. The relator insisted on having the warrant then and there delivered to him, and threatened that, unless delivered, he would proceed
The writ commanded that the auditor issue a warrant for $635.81, without specifying any items comprising such sum. This sum was described as “salary.” The auditor issued a warrant for $395 only. This left the writ uncomplied with to the extent of $240.81. The mandate is still unsatisfied, and to that extent, at least, remains as a command to be obeyed by the defendant if the judgment is affirmed. The disposition of this sum still remains to be made, and the fact that no issue was made concerning payment of this sum is immaterial, as the issues may be changed when reached for final adjudication, in view of the issuance of the warrant for $395. The nature of this order, however, is such that a compliance with it would not necessarily be considered as an abandonment of the right of appeal. Payment of an enforceable judgment is not of itself deemed,in all cases such a compliance with the judgment as to deprive a defendant of his appeal. Unconditional payment of a judgment by the person against whom it is rendered, and an unconditional acceptance of such payment by the person in whose favor it is rendered, are radically different, as affecting the -right to appeal. Accepting the benefits of a judgment, and an appeal therefrom thereafter, are acts inconsistent with each other. The unconditional payment and compliance with a judgment are not always matters of choice, and are therefore not always deemed voluntary, as a matter of law. Payment or compliance may be exacted by execution pr commitment, and are therefore deemed involuntary. Payment or compliance as a matter of compromise, or under some special arrangement by which an appeal is agreed to be waived would be voluntary. But when made without conditions, and to avoid the enforcement of the judgment by due process of law, an appeal is not thereby barred. Because a person does not wish to risk the sacrifice of his property by forced sale, or does not wish to risk suffering the penalty of even temporary refusal to comply with the judgment, in cases where the giving of a supersedeas bond is inconvenient or impossible, or an immediate appeal cannot be taken, does not indicate a voluntary compliance with the
The cases holding that a compliance with the mandates of the peremptory writ justifies a dismissal of an attempted appeal proceed upon the theory that the acts ordered to be performed, and actually performed pursuant to the writ, are such that a reversal of the judgment granting the writ would have no effect upon the act performed. If a reversal of the judgment in this case would not and could not have any effect upon the rights of the parties, so far as-the issue of the $395 warrant is concerned, then the principle laid down in the following cases would be applicable: In re Kaeppler, 7 N. D. 307, 75 N. W. Rep. 253; Leet v. Board (Cal.) 47 Pac. Rep. 595; Foster v. Smith, Id. 591; San Diego School Dist. of San Diego Co. v. Board of Sup’rs of San Diego Co., 97 Cal. 438, 32 Pac. Rep. 517; In re Manning, 139 N. Y. 446, 34 N. E. Rep. 931; People v. Common Council of City of Troy, 82 N. Y. 575. But we do not understand that the action of the county auditor in delivering the warrant to the relator gave him such rights to the warrant, or to the money received thereunder, as to render him not liable to account therefor, in a proper action, in case it is judicially determined that he was not lawfully entitled thereto. In such event he may be compelled to restore the property received, or to account therefor. Hiler v. Hiler, 35 Ohio St. 645; Chapman v. Sutton, 68 Wis. 657, 32 N. W. Rep. 683; Richeson v. Ryan, 56 Am. Dec. 493. Under the evidence the issuing of the warrant to the respondent did not necessarily finally determine the rights of the parties in relation thereto. It follows that a practical issue remains unsettled' as the record now stands, and the motion to dismiss the appeal is therefore denied.
The remaining question is, did the facts ds stated in the answer, taken to be true, justify the county auditor in refusing to issue a warrant to the relator for the amount lastly claimed by him as due him for salary? In other words, are the provisions of the statute conferring upon the auditor the power to issue warrants for salaries to county officers mandatory upon him, or is he vested thereunder with any discretion in relation to that matter Section 652, Rev. Codes 1899, relating to salary of county superintendents, provides, “And the same shall be paid out of the county general fund monthly
The answer, as set forth herein, alleges facts which, if true, show that the relator had drawn money from the county to which he was not then entitled, that he has receivd compensation as superintendent of schools upon a basis of more schools than were actually kept m that county at that time, and that in consequence of such fact he was overpaid his salary, caused by the relator’s misrepresentations of the facts. It is claimed by the relator that such facts, even if true, afford no ground for the defendant’s refusal to< issue his warrant for the amount of the salary accrued; that such overpayment, even if made, is a matter to be adjudicated in a proceeding or action between the relator and the county; that the auditor should have issued the warrant, and if it was an overpayment, and known to be such by the auditor, he should nevertheless not interpose any objection, as the matter involved moneys due to the county, over which
Our conclusion is that the auditor showed facts in his answer entitling him to have the alternative writ of mandamus dismissed. Such a dismissal of the writ would have deprived him of nothing in the way of actual compensation due him, as he had an adequate and speedy remedy against the county by an ordinary action.
The order and judgment awarding the peremptory writ of mandamus are reversed, and the district court is directed to dismiss the proceeding.