Tod v. Crisman

May 5, 1904
Reporters:
,
Before:
Ladd
Ladd, J.

*698i. necessary parties: injunction. *697-In the decree entered May 30, 1901, the defendants were enjoined from levying or collecting taxes or *698issuing bonds on account of the ditch ordered by the board of supervisors to be constructed. But Doolev,, x , _ with whom the contract for its construction had been made, and to whom the bonds for the work had been executed, was not a party to that action. He was vitally interested in the result, for the decree purported to eliminate his-only source of compensation. The officers of the county had but a nominal interest in the suit, and were as likely to be’ adverse to the contractor as otherwise. The decision of the court, whatever it might be, could not touch them financially, Those materially interested were the owners of the land’ taxed, and the contractor entitled to receive the taxes if valid.. As said in City of Anthony v. State, 49 Kan., 246 (30 Pac. Rep., 499): “There are sufficient real controversies in all countries between real parties in interest to be litigated in the courts of justice, without resorting to fictitious controversies between nominal parties, or parties whose interests may all be on the same side.” As in point, see Osterhoudt v. Supervisors, 98 N. Y., 243; Maxwell v. Auditor General, 125 Mich., 621 (84 N. W. Rep., 1112); Beck v. Allen, 58 Miss., 143; Shields v. Pipes, 31 La. Ann., 765; Litchfield v. Polk Co., 18 Iowa, 70; Moore v. Held, 73 Iowa, 538; Postlewait v. Howes, 3 Iowa, 365. Estimates had been made by the engineer, and these allowed, so that the contractor had a subsisting interest- in the levy of taxes-for his payment. In this respect the case is to be distinguished from Palmer v. Rich, 12 Mich., 414, where the contractor was ]ield to have no interest in the taxes, and therefore not to be a necessary party. Here this was his oniy source of compensation. Did the court, in his absence as a party, acquire jurisdiction to enter the decree ? The parties to an action are sometimes divided into three classes: (1) Formal parties. (2) Necessary but not indispensable parties. These are persons having an interest in the controversy, who should be made parties, to the end that it may be entirely adjudicated and complete justice done. Their interests,’ however, are separable from those of the parties before the *699court, so that the court may proceed to final decree, and do justice therein, without, affecting prejudicially the interests, of others. They are usually referred to as proper parties. (3) Necessary and indispensable parties, or those having an interest of such a nature that final ‍‌​‌​​​‌​‌‌‌​​‌​​‌‌​‌​‌‌​​​‌‌‌‌‌‌‌‌​​​‌‌​‌​​‌‌‌‌​‌​​‌‌‌‌‌​‌​‌​‌‌​​​​​​‌‌​‌‌​​‌​​​‌​​‌​‌‌​​‌​​​‌‌​‍decree cannot be entered without either affecting their interests, or leaving the controversy in such a condition that its final determination may be wholly inconsistent with equity and good conscience. Shields v. Barrow, 17 How., 130 (15 L. Ed., 158); Mechanics’ Bank v. Seton, 1 Pet., 299 (7 L. Ed., 152). Manifestly the contractor belonged to the last class, for any decree entered could not be permitted to stand as an obstacle to his claim of compensation from the taxes levied. He would still have the right to his day in court, and then to insist upon the validity of the proceedings, and the collection of the taxes out of which he would be entitled to the payment of the contract price. In other words, the decision without him as a party could not be final. The authorities relied upon by appellee are not in point. In Anderson v. Orient Ins. Co., 88 Iowa, 580, the county was held not to be a necessary party, because there was “no attempt to divest the county of a right or impose upon it an obligation,” aiid the same reason controlled the decision in Holliday v. Hilderbrandt, 97 Iowa, 180. In neither case was a necessary party omitted.’

2. necessary parties: non joinder: how taken advantageof. No little difficulty, however, has been experienced in discriminating between the two latter classes. Where those belonging to the second class — that is, proper but not indispensable parties — have been omitted, objection _ _ jo must be taken by demurrer or answer m the ^ district court, and cannot be made for the first time on appeal. Sections 3561, 3562, Code; Bouton v. Orr, 51 Iowa, 473; Coe v. Anderson, 92 Iowa, 515; Zion Church v. Parker, 114 Iowa, 6. The rule is different, however, when the omitted parties belong to-the third class, and are indispensable to the final adjudication of the rights of the parties, for then •the point may be raised for the first time on appeal. Parshall v. Moody, 24 Iowa, 314; Crosby v. Davis, 9 Iowa, *70098; 15 Ency. P. & P., 689, and cases collected. This is on tho ground that statutes like section 3166 of the Code are construed as mandatory in their nature. It provides that, “when a determination of the controversy between the parties before the court cannot be made without the presence of other parties, it must order them to be brought in.” Says Mr. Pomeroy, in his work on Remedies and Remedial Rights: “If there are other persons, not parties, whose rights must be ascertained and settled before the rights of the parties to the suit can be determined, then the statute is peremptory. The court must cause such persons to be brought in. It is not a matter of discretion, but of absolute judicial duty. The enforcement of this duty does not rest entirely upon the parties to the record. If they should neglect to raise the question, and to apply for a proper order the court upon its own motion will supply the omission, and will either bring in the new parties, or remand the cause in order that the plaintiff may bring them in.” The want of indispensable parties, as seen, may be raised for the first time on appeal; and there are authoritities to the effect that, where the want thereof is,apparent from the record, the appellate court should sua sponte raise the question and remand the cause. Morgan v. Blatchley, 33 W. Va., 155 (10 S. E. Rep. 282).

3’ Jt?ec2sa^10N’ parties. It does not follow, however, that a decree entered in the absence of necessary parties is not binding on those before the court. The rule laid down by -the authorities is that in no case does the court’s jurisdiction over the subject-matter and the parties properly before it depend upon the absence of other parties, however, necessary these may be to a complete adjudication. Undoubtedly those who have not been made parties may collaterally dispute the decree and deny its validity, and probably it should not be regarded as an obstacle to them in obtaining any relief to which they may be entitled. But its efficacy between the parties before the court does not depend upon the fact that others may or ought to have been made parties. ’ Their absence is not a defect involving the’ jurisdiction of the court over the *701parties who are present, or over- the subject-matter of the suit, in so far as those parties are concerned. “The court may nevertheless proceed to a decree, and such decree, though rendered in violation of the rulés and practice of equity in such cases, is not void as between the parties to it. It is irregular, but not void. It binds the parties to it until set aside in some direct proceeding for that purpose. And the reason of this is obvious. Jurisdiction exists wherever there is a suit, the subject-matter of which is cognizable in a court of chancery, and parties are before the court whose rights in relation to such subject-matter the court may adjudicate; and the effect of such adjudication between the parties, until reversed or set aside, does not depend upon the fact that the power ‍‌​‌​​​‌​‌‌‌​​‌​​‌‌​‌​‌‌​​​‌‌‌‌‌‌‌‌​​​‌‌​‌​​‌‌‌‌​‌​​‌‌‌‌‌​‌​‌​‌‌​​​​​​‌‌​‌‌​​‌​​​‌​​‌​‌‌​​‌​​​‌‌​‍of the court may have been erroneously exercised in making it. If there be necessary parties wanting, whose absence may render the adjudication fruitless or ineffectual, because the rights of such parties cannot be determined, that may be good cause for arresting proceedings or dismissing the suit, but it does not deprive the court of the power to proceed.” Supervisors v. Mineral Point Ry. Co., 24 Wis., 93, 131; Smith v. Ford, 48 Wis., 115 (2 N. W. Rep. 134); Joy v. Wirtz, 1 Wash. C. C. 517 (Fed. Cas. No. 7,554). See Fulliam v. Drake, 105 Iowa, 615.

4. certiorari: necessary parties. II. Appellants also contend that the contractor was a necessary and indispensable party to this proceeding by certiorari. Our statute provides that the writ “shall command the defendant therein to certify to the court . / ° from which it issues, at the specified time and place, a transcript of the record and proceedings, as well as the facts of the case describing them or referring to them or any of them with convenient certainty and also to have then and there .the writ.” Section 4155, Code. “The writ must be served and the proof of such service made in the same manner as is prescribed for the original notice in the district court, except the original shall be left with the defendant and the return of service made upon copy thereof.” Section 4158. Manifestly the parties defendant are to be brought in *702by the service of the .writ of certiorari, rather than an original notice. The entire proceeding is leveled at the tribunal, board, or officer alleged to have exceeded the jurisdiction or authority conferred by law, and ordinarily these are to be ■deemed proper parties defendant of record. Chambers v. Lewis, 9 Iowa, 583; Baker v. Superior Court, 71 Cal., 583 (12 Pac. Rep., 685.) The response is not. an answer, but “a transcript of records,” etc., as above stated. The hearing upon “the record, proceedings and facts as certified and such ■other testimony oral, or written as either party may introduce,” and the court is to “give judgment affirming or annulling the proceeding in whole or in part, or, in its discretion, ■correcting the same and prescribing the manner in which the parties or either of them shall further proceed.” Section 4160, Code. But an answer may be filed to the end that the .issues be sharply defined, and the cause be decided on the merits, rather than on technical points merely, for the petition in this class of cases is always addressed to the sound discretion of the court. And probably it is the better practice, whenever the defendants rely- upon extrinsic evidence, to show that no injustice has been done. The writ, however, is in the nature of a writ of error to the inferior tribunal, board or officer, the court determining from an inspection of the entire record whether the proceedings’ are illegal, and therefore the pleadings should be in the name of the defendants of ■ record.

But it does not follow that persons interested in upholding the proceedings assailed may not be accorded the opportunity of being heard. Technically they may not, under our ■statute, be designated as parties defendant in the pleadings; but the court will ordinarily see to it, before deciding the .case, that all such are given a hearing if they so desire. In Worcester & N. R. Co., v. Railroad Commissioners, 118 Mass., 561, the court, while expressly declaring that none save the tribunal, board, or officer whose jurisdiction or authority is assailed should be made parties defendant, held that persons interested in upholding the proceedings sought to be annulled might, by permission, and in the name of de*703fendants, oppose the petition. The practice prevailing in England is to serve a copy of the writ upon the attorneys of record in the proceedings assailed, while the writ, when issued by the Supreme Court of the United States, is accompanied with a citation to the party. In Pennsylvania “the ■court of review will take care that notice is given, and that the proper parties are put on the record.” Com. v. McAllister, 1 Watts, 307 (26 Am. Dec. 70.) No adjudication will be had in New Jersey when interested persons have not been notified. State v. Inhabitants of Township of West Hoboken 39 N. J. Law, 421. To the same effect, see Commonwealth v. Peters, 3 Mass., 229; Black v. Brinkley, 54 Ark., 372 (15 S. W. Rep., 1030); State v. Mayor, etc., (N. J. Sup.) 44 Atl. Rep. 844. See Ex parte Buckley, 53 Ala., 42; Clark v. Write, 67 Ind., 224; Keerans v. Keerans, 109 N. C., 101 (13 S. E. Rep. 895); 4 Cyc. P. & P., 196, et seq. The court, in State v. Commissioners of Washoe Co., 23 Nev. 247 (45 Pac. Rep., 529,) in announcing the same rule, re marked that “it is a well-known principle that no man’s rights can be concluded by a judgment unless he is a party to the action, and has been given his day in court.” In People v. Walter, 68 N. Y., 403, the court, after noticing the absence of persons interested from the record, said: “A judgment of any court, whatever its jurisdiction, is only evidence against parties to the record, or those in privity to them. The records would not be competent ‍‌​‌​​​‌​‌‌‌​​‌​​‌‌​‌​‌‌​​​‌‌‌‌‌‌‌‌​​​‌‌​‌​​‌‌‌‌​‌​​‌‌‌‌‌​‌​‌​‌‌​​​​​​‌‌​‌‌​​‌​​​‌​​‌​‌‌​​‌​​​‌‌​‍in an action upon the bonds, and, if our judgment should be adverse to the validity of the proceedings under the statutes authorizing the issuance of bonds, the bondholders might laugh at our decision, knowing it could not affect them, and if we should affirm the action of the assessors, the town authorities might snap their fingers, and in an action on the bonds make every defense which legal skill should suggest without the slightest impediment from our opinion or judgment. It is a fundamental principle that a party cannot be deprived of his property or civil rights, except by due process of law, or affected by judgments in actions and proceedings to which he is not a party, and in which he has not had his day in court.” It is to be observed. *704however, that the last two cases mentioned were determined on other grounds. The statutes regulating proceedings by certiorari in the several states differ radically, so that decisions outside of the state are of little aid. The real merits of the original controversy are not involved. Even though the proceedings assailed are annulled, the parties are merely relegated to other remedies. The only question to be determined is, did the board, officer, or tribunal act illegally or without jurisdiction? The decision will seldom affect the substantive rights of any one.

But according to the opinion of some members of the court the circumstances may be such that passing upon the issue of jurisdiction will be determinative of such rights. For instance, if the restraining decree be conceded to have been correct, then a decision as to whether the subsequent amendment of the record by the board of supervisors so changed the situation that the second levy and issue of the bonds were legal might prove conclusive as to the contractor’s right to the taxes levied and the bonds issued; for, if these be held illegal, he has been deprived thereof without‘a hearing. Other members think that in no event can the conclusion announced deprive any one of his appropriate remedy, and in no case are any other than the officer, board, or tribunal whose action is assailed a necessary party to the record. The conclusion we have reached renders it unnecessary to decide this point.

5. certioei: adjudication, III. Oounsel have argued the question as to. whether the former decree is res adjudicóla in this action. We are at a loss to understand how the inquiry can arise in this proceeding, in which the only point at issue is Aether t]10 hoard of supervisors acted illegally by exceeding its authority as limited and defined by the decree entered in the injunction suit. That issue was not’ presented, and is raised in this proceeding for the first time. We shall not take the trouble to ascertain whether there are parties plaintiff in thi3 proceeding who were not parties to the former suit. It is *705enough, that some of the plaintiffs are the same in both, and have the right in this proceeding to question the legality of the action of the board in ignoring the injunction, for its character was such that it could not be violated without affecting all parties whose land was subject to the payment of the drainage taxes.

Certiorari to review action of board of supervisors: amendment of record of IV. The board of supervisors was enjoined from levying taxes or issuing bonds to pay for the construction of the ditch. Unless relieved by subsequent events, the members were ‘bound to obey this restraining order of the court. Appellants argue that, conceding the decree to have been correct, the record of the board of supervisors has been so amended, and such noticqs given to the parties interested before the second levy, as that it is valid. “The supervisors are required to keep a book, to be known as the ‘Minute Book,’ in which shall be recorded all orders and decisions made by it: excepting those relating to highways.” Section 442, Code. “The county auditor shall record all the proceedings of the board in proper books provided for that purpose.” Section 470, Code, September 4, 1899, was fixed in the notices issued by tfie auditor, and served, as the time when the board of supervisors would hear all objections and claims for damages. The “minute book,” as it originally stood, contained no reference to such hearing, and the first entry concerning the ditch was that of November 27, 1899, in which it appears that “the board of supervisors of said.county, finding such improvements conducive to the public welfare, it is ordered that the ditch prayed for be located, and established.” There was no finding that a “majority of the persons resident in the county, owning land abutting upon such proposed improvement” had filed the petition for the ditch. Section 1940, Code. See Richman v. Board of Supervisors, 70 Iowa, 627; Abney v. Clark, 87 Iowa, 727. After the evidence had been introduced in the equity suit, and the court had announced its decision declaring all the proceedings to *706have been without jurisdiction, the defendants, on June 1, 1902, asked leave to amend their ‍‌​‌​​​‌​‌‌‌​​‌​​‌‌​‌​‌‌​​​‌‌‌‌‌‌‌‌​​​‌‌​‌​​‌‌‌‌​‌​​‌‌‌‌‌​‌​‌​‌‌​​​​​​‌‌​‌‌​​‌​​​‌​​‌​‌‌​​‌​​​‌‌​‍answer and cross-petition by setting .up that by accident and mistake the records of the board of supervisors failed to set out the proceedings of said ‘board of September 5, 1899, and. that it be allowed to amend the same in conformity to the facts. Amendments showing an amendment of said record were filed — that to the cross-petition by way of supplement. These were stricken on motion, and a decree entered as of the date the decision was announced, May 30, 1899. The petition had distinctly alleged that the location of the ditch was determined at a time other than that provided by law, and that less than the number of persons required had signed the petition. The answer controverted this, and averred the filing of claims September 1, 1899; that further proceedings were adjourned to the next regular meeting of the board; and that “at the next regular session of the board of supervisors the said board proceeded to locate and did locate and establish the said drain as by law provided.” So the jurisdiction of the board of supervisors had been put in issue, and defendants had asserted that the ditch was located and established at the November, 1899, session of the board. It was not until an adverse decision had jogged their memories that they were able to recall that everything essential to the validity of the proceedings had been done at the September, 1899, session. It was then that the amendment to the record was made.

The right of officers to amend a record to be kept by them is quite generally recognized, and, when so amended, it is held by some courts not to be open to collateral attack. As to whether this may only be done when in office, and what evidence must be relied upon, there is some difference of opinion. See Andrews v. Inhabitants of Boylston, 110 Mass., 214; Halleck v. Inhabitants of Boylston, 117 Mass., 469; Vaughn v. School District, 27 Or., 57 (39 Pac. Rep. 393); Inhabitants of Jay v. Inhabitants of Carthage, 48 Me., 353; Welles v. Battelle, 11 Mass., 477; Hartwell v. Inhabitants of Littleton, 13 Pick., 229; Gibson v. Bailey, 9 N. *707H., 168; Kiley v. Cranor, 51 Mo., 541; Mott v. Reynolds, 27 Vt., 206; Ohio & M. Ry. Co. v. People, 119 Ill., 207 (10 N. E. Rep. 545); Mann v. Le Mars, 109 Iowa, 251; Ryder‘s Estate v. City of Alton, 148 Ill., 94 (51 N. E. Rep. 821); Everett v. Deal, 148 Ind. Sup., 90 (47 N. E. Rep. 219); Leominster v. Conant, 121 Mass., 384 (2 N. E. Rep. 690); People v. Gilon, 121 N. Y., 551 (24 N. E. Rep. 944); State v. Ry. (Nev.) 30 Pac. Rep. 890; Sheldon v. Marion, 101 Mich., 256 (59 N. W. Rep. 614). In City of Covington v. Ludlow, 1 Metc. (Ky.) 295, it appeared that an ordinance had been reported in August, 1854, and in 1856 the record was amended by adding to the journal of the proceedings, “Passed unanimous.” The court, conceding the power to amend, held that it would not follow that “a different council, whose only knowledge of the proceedings that actually occurred at a previous meeting of the board would have to be derived from the information of other .persons, could properly exercise such power. The city council keep a journal of their proceedings. The evidence in that journal furnished evidence for their actions in their’ official capacity. If changes and amendments can be made .at a remote period, and by a different board, then all the entries become uncertain, and none can be relied upon, even by those who are acting under them. The evils resulting from such practice would be unendurable. All confidence in the entries in the journal would be destroyed, and the action of the. city council at the meeting held by them would be a matter open for controversy, which would have to be determined by an appeal to the uncertain recollection of witnesses.” The amendment was declared unauthorized. But in Board of Education of Glencoe v. Trustees, 174 Ill., 510 (51 N. E. Rep. 656), the defendant’s record of May 6,. 1896, was amended July 25th following. As so amended, it failed to .show jurisdictional facts for the change of territory, and an-amendment made April 27, 1897, finding’ these, was upheld, even though there had been a change- of the personnel- of the board of trustees. In Hadley v. Chamberlin, 11 Vt., 618, *708the record of the school district, when first offered in evidence, did not show the appointment of defendant as tax collector. The defendant, claiming to be or to have been clerk, thereupon amended the record, and again offered it. It appears to have been rejected; the court saying: “It is undoubtedly the duty of all recording officers to see that the proceedings of the corporation are correctly recorded, but the practice of amending and altering records, when a controversy has arisen, to meet a particular case, or in consequence of a decision of the court, cannot be defended; and the case before us shows the impropriety of the procedure.” But in Mott v. Reynolds, 27 Vt. 206, the record, when first offered in evidence, failed to show the signature of the clerk to a copy of a warning to electors. It was rejected, but received after the ‍‌​‌​​​‌​‌‌‌​​‌​​‌‌​‌​‌‌​​​‌‌‌‌‌‌‌‌​​​‌‌​‌​​‌‌‌‌​‌​​‌‌‌‌‌​‌​‌​‌‌​​​​​​‌‌​‌‌​​‌​​​‌​​‌​‌‌​​‌​​​‌‌​‍clerk, who was not a party to the action, had amended by attaching his signature. The case is distinguished from Hadley v. Chamberlin on the ground that in the latter the amendment was made by a party to the suit, and that the conclusion was finally reached that,- in any event, Chamberlin was not an officer.

In a proper case no good reason is perceived for denying an officer the right to so correct his record as that it shall speak- the truth. Of course, it should be exercised with caution, and doubts with reference to the existence of. defects should ordinarily be resolved against them. But litigation is often the occasion of mistakes being discovered, and the mere fact that these are ascertained in the course of a trial ought not to be held a bar to their correction. But this amendment was not made until after the cause had been submitted. It was not- offered in evidence. Nor was the undertaking to amend an imperfect record of the proceedings of the board with respect to the petition for the ditch, but to supply a wholly new entry, and to do so after the case in which the board had relied on an order made at an entirely different time had been decided adversely to it. The propriety of amending a record under these circumstances may well be questioned. Viewed from the standpoint of the plaintiffs *709in tbe former action, tlie change in tbe record was no more or less than a change in evidence of a fact in issue. It was an attempt by defendants to manufacture new evidence after the issue had been decided against them. Parties cannot be permitted to thus experiment in litigation. They may not test the law with one state of facts, and upon an adverse decree bring forward another, and insist upon a second adjudication of precisely the same issue. If matters appropriate, for the consideration of the court have been omitted, the remedy is by motion or petition for new trial. Such omission furnishes no excuse for ignoring the judgment or decree of the court. Something is claimed because of notices of the proposed levy having been served after the former decree. This did not have the effect of materially altering the situation as such notices were not exacted by the statutes. Beebe v. Magoun, 122 Iowa, 94; Smith v. Peterson, 123 Iowa, 673. Nor are plaintiffs estopped from insisting upon obedience to-the restraining decree. Nothing has occurred since its entry upon which defendants can rest such a contention.— Affirmed.