124 P.2d 1003 | Mont. | 1942
Lead Opinion
This is an appeal by defendant from a judgment in favor of the plaintiff. The judgment is the result of a controversy submitted without action under section 9872 et seq., Revised Codes. The agreed facts show that plaintiff was the sheriff of Silver Bow county from January, 1931, until January, 1939. During that time he incurred mileage by traveling in the performance of his duties, and presented claims against the county therefor from time to time. The claims were presented in some cases for 7 cents and in others for 8 1/2 cents per mile. The claims were approved by the county auditor and allowed and ordered paid by the board of county commissioners. Nearly a year after plaintiff retired from his eight years in office he presented additional claims for mileage aggregating $16,528.87. These claims were for mileage for the same services covered by the previous claims which had been allowed and paid, but sought the difference between the 7 and 8 1/2 cents per mile and 10 cents per mile. If these additional claims are allowed and paid, plaintiff will have received 10 cents per mile for all mileage. The additional claims were made separately for each year and allowed by the county auditor, but disallowed by the board of county commissioners. Thereupon plaintiff appealed to the district court, where the cause was submitted on an agreed statement and without any pleadings.
It was stipulated that "all of the items in said claims and each of them for mileage are proper and just charges against Silver Bow county, Montana." It was also stipulated that the items were not outlawed under the laws of the state of Montana, and that in all other respects the "claims and the amount thereof are proper charges against Silver Bow county, Montana, and that the same are in proper, legal form, and itemized and verified as provided by the laws of the state of Montana." *240
Pursuant to this stipulation the court entered judgment in[1, 2] favor of the plaintiff. Defendant perfected this appeal from the judgment. Plaintiff has made a motion to dismiss the appeal upon several grounds, one of which is "that it affirmatively appears from the transcript on file herein that the judgment or order appealed from was entered by the lower court by consent and agreement of the parties to the proceeding, and that the appellant herein is not a party aggrieved thereby within the meaning of section 9730 of the Revised Codes." This motion must be sustained.
"Consent to a judgment is a waiver of any errors in it, and it is therefore an established rule that a judgment or order will not be disturbed on an appeal prosecuted by a party who expressly consented to the making of it. Under such circumstances the appellate court will not consider the appeal at all but will dismiss it." (Cal. Jur. 878.)
In Schmidt v. Oregon Gold-Mining Co.,
The defendant contends, however, that it was beyond the power of the board of county commissioners to give its consent to the matters covered by the stipulation. With this we do not agree.[3] The county commissioners are the ones to whom claims against the county must be presented in the first instance. They are given express authority to pass upon the *241
claims. This being so, they stand in somewhat the same situation as an executor or administrator. The rule is that "an executor or administrator can, in the exercise of his judgment, pay a debt proved against the estate. If he may pay the debt, it is difficult to see why, when suit is brought, he may not agree that judgment may be taken. Such a view is amply sustained by the authorities [citing cases]." (Brown Bros. v. Brown,
Defendant further contends that in any event it is beyond the[4] power of the board of county commissioners to waive compliance with section 4605, Revised Codes, requiring claims against the county to be presented within a year after the last item accrued. It takes the position that failure to comply with that section of the statute defeats the claims (save the one covering the last year) as a matter of law, and that the county commissioners may not stipulate that they are proper charges against the county if there were failure to present the claims within the statutory time; and the county contends that the stipulated facts show that the claims were not presented within the time contemplated by section 4605. There are circumstances here which make the general rule contended for inapplicable.
Section 4605, requiring all claims to be presented within a year after the last item accrued, is a provision enacted for the benefit of the county commissioners to enable them to investigate the merits of claims while evidence is available from which their merits may be inquired into. That purpose was fulfilled when the claims were originally presented. They were then investigated and found to be legitimate and were allowed. The county commissioners then determined the fact that the work had been done by the sheriff necessitating the travel. The legal effect of the additional claims amounts to but amendments of the prior claims to the extent of asking for the difference between what the sheriff had received and the 10 cents *242 per mile to which he was entitled under the law. (Sec. 4885, Rev. Codes.)
We agree with the statement of law made by the supreme court of Idaho in Drainage District No. 2 of Ada County v. AdaCounty,
The claims in question here were not such as required presentation to the board of county commissioners. This being so, we pass to the point whether it was proper for the board of county commissioners to stipulate that none of the items were[5] outlawed. The statute of limitations is a personal privilege which may be waived. It must be pleaded, in order to be[6] available as a defense. The county commissioners have the right and power "to direct and control the prosecution and defense of all suits to which the county is a party." (Sec. 4465.14, Rev. Codes.) It seems clear that the board could decline to plead the statute of limitations whenever it was of the opinion that facts showing the bar of the statute could not be established. This was the implication of the holding *243
in Hicks v. Stillwater County,
It will not do for the county commissioners, whose duty under the law is to pass upon claims against the county and who have the power to direct and control the prosecution and defense of all actions to which the county is a party, to trifle with the court by stipulating away all defenses, if any exist in favor of the county, and then contend that the court was in error in taking them at their word. They are the ones who speak for the county and the county is bound by any judgment rendered pursuant to their consent.
Since defendant is not an aggrieved party within the meaning of section 9730, Revised Codes, the motion to dismiss the appeal must be and is granted.
MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICE ERICKSON and ANDERSON concur.
Dissenting Opinion
I dissent. It was specifically stated in the recital of facts upon which the judgment was grounded that "It was further agreed by all of the said parties that the statute of limitation has not run against any or all of said claims." Public officials are trustees of all the people and have no power to waive the statutes of limitations. Even if the county board allow and pay an illegal claim, the county attorney is compelled by statute to recover the amount paid.
Section 4821, Revised Codes, provides: "If the board of county commissioners, without authority of law, order any money paid as a salary, fees, or for any other purposes, and *244 such money has been actually paid; or if any other county officer has drawn any warrant or warrants in his own favor, or in favor of any other person, without being authorized thereto by the board of county commissioners or by law, and the same has been paid, the county attorney is empowered, and it is his duty, to institute an action in the name of the county against such person or persons to recover the money so paid, and twenty-five per cent. damages for the use thereof; and no order of the board of county commissioners therefor is necessary to maintain such suit; but when the money has not been paid on such order or warrants, it is the duty of the county attorney, upon receiving notice thereof, to commence an action in the name of the county for restraining the payment of the same, and no order of the board of county commissioners is necessary to maintain such action."
It is absurd to assume that county officials may waive the statutes of limitation. The cases cited to support such contention are cases in which the litigants were private parties. Not one involved a case in which the state or one of its subdivisions was a party in interest. Statutes of this nature apply to litigation between private parties, and may be made to apply to the state and its subdivisions only when they expressly so provide. (Board of County Com'rs v. Story,
County boards have no powers except those vested in them by statute. (State ex rel. Lambert v. Coad,
"A state cannot be estopped by unauthorized acts or representations of its officers." (19 Am. Jur., sec. 166, Estoppel.) In section 167, just following the above, it is said: "If counties are regarded as agencies of the state and constituent parts of the state, they are subject to an estoppel only to the same limited extent as the state itself. * * * The issuance of a warrant does not estop a county from questioning the legality of a claim for which it was issued."
As to the right of appeal, such right is derived from the Constitution and cannot be taken away by legislative Act, and certainly not by a stipulation entered into by a county official. Chief Justice Brantly, speaking for the court in Finlen v.Heinze,
In construing the constitutional phrase "under such regulations and limitations as may be prescribed by law," the learned Chief Justice adopted the following language from the case of State ex rel. Whiteside v. First Judicial DistrictCourt,
"`While the legislature cannot decrease the powers granted by the Constitution, this clause evidently intended that that body should provide the mode of procedure to be employed by which, and the limitations as to time within which, both these powers should be invoked. * * * It is in this sense that an appeal is the creature of the statute, and that the right to it does not exist unless it is provided for.' By this language we meant to intimate an opinion that the power to consider appeals to this court from final judgments in all cases is a constitutional power, and that, in the absence of suitable action by the legislature providing the necessary procedure, the power is not held in abeyance, but may nevertheless be exercised under suitable rules provided by this court.
"The clause, `subject to such limitations and regulations as may be prescribed by law,' contained in section 3, — a substantial equivalent of the limitations clause in section 2, — must be read in connection with the preceding clause, which embodies the grant, and such import be given to it as will permit the court to retain the power vested in it, as a distinct department of the government, with its own peculiar and appropriate functions, and at the same time preserve the right guaranteed to the litigant. The word `limitations,' in its ordinary legal and popular sense, refers to the time within which an action may be brought, or some act done, to preserve a right. In this sense it implies power in the legislature to enact reasonable provisions fixing a limit to the time within which an appeal from a final *247 judgment may be prosecuted. This the legislature has done in the enactment of section 1723, supra, after recognizing the right of appeal in subdivision 1 of section 1722. * * * These provisions, taken together, are limitations not only as to the time within which, after the making of the particular judgment or order, the appeal may be prosecuted, but also, in case of intermediate and interlocutory orders and decisions, as to the time in the course of the litigation at which the proceedings for review must be instituted. * * * But, though this is true, the power of limitation by the legislature applies primarily to the time within which the power of this court may be invoked by the litigant. It is only in this sense that the legislature mayimpose limitations, and these limitations, whatever they may be,may not restrict the right of the litigant to have every order inthe case affecting the merits reviewed either upon appeal from the final judgment or during the progress of the case, and within a reasonable time after the particular order is made; nor may they restrict the power of the court to grant such review. So the word `regulations' refers to the establishment of the procedure by means of which the power may be set in motion, and in obedience to which it may be exercised. It is only in thisqualified sense that an appeal from a final judgment is acreature of the statute."
The same eminent authority in speaking for the court inRaymond v. Raymond,
The provisions of the statutes which the plaintiff relies upon to foreclose Silver Bow county from the right of appeal in the instant case apply to the time in which an appeal may be taken and the mode of procedure on appeal, and not to the right of appeal. The right is derived from the Constitution and may not be denied by statute. The right of appeal, however, is limited to a "final judgment." Section 9313, Revised Codes, defines a "final judgment" as "a judgment is the final determination of the rights of the parties in an action or proceeding." *248
In State ex rel. Meyer v. District Court,
In Paulich v. Republic Coal Co.,
It was said in Ringling v. Biering,
There was nothing left to do after the trial court made and entered the judgment in the case at bar except to enforce such judgment, and it was a final judgment.
The board of county commissioners, while exercising certain quasi judicial powers, is not a judicial body in the usual meaning *249
of that term. "Where judgment is exercised by an administrative board as an incident to a ministerial power, it is not an exercise of `judicial power,' within the meaning of the Constitution." (23 Words Phrases, Permanent Edition, p. 315;Conover v. Gatton,
Taking up defendant's assignments of error, without giving particular consideration to each, it is my view that the defense of the county depends entirely upon the construction of the statute of limitations, section 4605, Revised Codes, which provides in part: "Every claim against the county must be presented within a year after the last item accrued." The first question that arises in considering this statutory provision is whether plaintiff's claims shall be determined to be a single claim in accordance with the contention of the plaintiff, or as a number of claims, as contended by the defendant. I think defendant's contention as to this question should prevail. During the time the plaintiff served as sheriff of Silver Bow county the elective term of that office was two years. Plaintiff was elected and served four separate terms. I think the time in which he must have filed his claims for mileage traveled during any particular term was one year from and after the date of the last item of his claim following the termination of that term. I can conceive of no sound reason why plaintiff should not be held to settle all his claims against the county arising during any one term within a year after termination thereof. The slate should be wiped clean after each term. Before entering upon his first term, and upon the commencement of each additional term, he was required to take and file an oath of office, and give bond for faithful performance of official duty. Each term carried its own exclusive rights and *250 obligations, and on the termination of any term it was the plaintiff's duty to settle all such matters as claims for mileage due, as fully as though he were being succeeded in the office by another. This is the most liberal construction of the statute that can be rightfully claimed in favor of the plaintiff.
I am fully aware of the fact that this court held in the case of Hicks v. Stillwater County,
Another statutory provision enacted in the interest of prompt presentation of claims against a county is section 4462, requiring the county board to meet on the first Monday of each month for the specific purpose of "allowing bills." Other business may be taken up at the monthly meetings, but allowing bills is the only special reason mentioned for such monthly meetings.
The judgment should be reversed and the cause remanded to *251 the district court with instructions to allow plaintiff's claim for mileage for his last two-year term in office, if the county auditor and the county board shall find that the last item on such claim is for services performed within one year as provided by section 4605, and to deny all the other claims.
Dissenting Opinion
My dissent to the opinion as originally handed down goes as to this amendment. *253
Addendum
The record then contains an order signed by the judge reciting in substance that the cause came on for trial and pointing out who appeared as counsel, and then contains this recital: "Thereupon, by agreement of counsel for the respective parties it was agreed that all claims included in the within statement of facts were true and correct and properly itemized and verified, as required by the laws of the State of Montana; it was further agreed by all of the said parties that the Statute of Limitations has not run against any or all of said claims and that said claims, and each and all of them, were just and meritorious; that thereupon the court interrogated each of the members of the Board of County Commissioners of Silver Bow County, Montana, as to whether or not such commissioners had any statement to make or anything to add to the agreed statement of facts herein and as to whether or not the members of said board had any evidence to offer, whereupon each of said members replied in the negative, and it appearing to the court that all of the parties to the above-entitled action were in *252 agreement upon the facts and the law, thereupon, the said matter having been submitted to the court for decision and determination, the court orders judgment reversing and setting aside the action and order of the Board of County Commissioners of Silver Bow County, Montana, in refusing to allow, and in disallowing, said claims, and each of them, in favor of the appellant, above-named, and against the respondent, above-named, and hereby approves and allows said claims, and each of them, and hereby orders judgment approving and allowing said claims, and each of them, in the amount set forth in the agreed statement of facts herein."
Defendant contends that this order was not properly a part of[7] the judgment roll and that we should disregard it. The case of Hauret v. Pedelaborde,
MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICES ERICKSON and ANDERSON concur.