5 Minn. 280 (Minn. 1861), School Dist. No. 7 v. Thompson

Citation:5 Minn. 280
Opinion Judge:Atwater, J.
Party Name:School District No. 7, of Wright County, v. J. H. Thompson
Attorney:Edward Hartley, for plaintiff. F. Beebee and M. Lamprey, for defendant.
Judge Panel:Atwater, J. Emmett, C. J., dissents.
Court:Supreme Court of Minnesota
 
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Page 280

5 Minn. 280 (Minn. 1861)

School District No. 7, of Wright County,

v.

J. H. Thompson

Supreme Court of Minnesota

1861

Page 281

Error to district court, Wright County.

This action was commenced by Thompson before a justice of the peace upon a promissory note made by the trustees of the defendant. On the return day of the summons the plaintiff appeared and filed his complaint, and, the defendant not appearing, asked for an adjournment upon an affidavit of his attorney, that he "had a subpoena for, but was unable to procure the attendance of, a material witness, and could not safely proceed to trial without such witness," the cause was adjourned for three days. On the adjourned day, the defendant not appearing, the plaintiff took judgment, which was removed by certiorari to the district court, where the judgment was affirmed.

Points and authorities for defendant: --

The evidence shows that the district, through its trustees, accounted and settled with Gray for his services as teacher of said district, and gave Gray the note of the district for the amount due him for his services then rendered. The statute confers upon the trustees the power to bind the district in employing teachers, and to settle with them for the same; and the acts of the trustees in this case were clearly within their power as such, and the district was bound by them. The power to contract debts and give notes is incident to corporations generally within the scope of their corporate powers, even without express authority in the charter or other statute to do so. Angell & Ames on Corp. §§ 257, 258; Atty. Gen. v. Life & Fire Ins. Co. 9 Paige 470; Curtis v. Leavitt, 15 N.Y. 7; Barker v. Mechanics' Fire Ins. Co. 3 Wend. 94; Kelley v. Mayor of Brooklyn, 4 Hill 263-265; Moss v. Oakley, 2 Hill 265; Ketchum v. City of Buffalo, 14 N.Y. 356.

Points and authorities for plaintiff: --

1. The adjournment granted was irregular, and discontinued the suit. 2 Johns. 192. The application therefor was without cause shown, and after complaint filed. The adjournment was not under Pub. Stat. 501, § 24, because the complaint, the only pleading in the case, was filed, but under p. 502, § 37, which requires "sufficient cause to be shown on oath." The testimony returned by the justice on the application shows the "cause" to be absence of testimony. No sufficient cause is therein shown: First, the testimony states no fact, only conclusions of law; Second, it shows no materiality in the witness, nor diligence to procure him; Third, nor that he would be procured if the adjournment was granted. Fols. 17 and 14 of return; Board of Wash. Co. Com'rs v. McCoy, 1 Minn. 100; Pub. Stat. 502, §§ 37 and 39; 8 Johns. 39.

2. The complaint does not state facts sufficient to constitute a cause of action. No indebtedness is shown concerning which the district had power to account or make a note; nor has it such power to make notes; nor does any debt it was in law competent to contract appear in the complaint; nor had the trustees authority to state an account with Gray, as no debts nor demands are stated as the basis of the settlement that the district is liable to pay. McCullough v. Moss, 5 Denio 567, 577, overruling 2 Hill 265, and 5 Hill 136; Pub. Stat. 358, § 6; id. 360, § 12; 5 Barb. 218. Fols. 22-27, of return.

Judgment reversed.

Edward Hartley, for plaintiff.

F. Beebee and M. Lamprey, for defendant.

Atwater, J. Emmett, C. J., dissents.

OPINION

Page 282

Atwater, J.

This was an action commenced before a justice of the peace of Wright County, by

Page 283

the defendant in error, against...

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