Baird v. City of Williston

• Decision Date: 14 August 1929
• Docket Number: No. 5646.,5646.
• Parties: BAIRD v. CITY OF WILLISTON et al.
• Court: North Dakota Supreme Court

58 N.D. 478

226 N.W. 608

BAIRD

v.CITY OF WILLISTON et al.

No. 5646.

Supreme Court of North Dakota.

Aug. 14, 1929.

Syllabus by the Court.

Where the district court has jurisdiction of the subject-matter of an action, and the findings of fact and the judgment contain recitals showing that service of the summons and complaint had been made upon one of the parties therein designated as defendant, such recitals cannot be attacked in another and later action, but are conclusive upon the court in this subsequent action.

One filing a brief by leave of this court and as amicus curiæ is not by such act alone made a party to the suit.

Where a party commences an action triable to the court, naming several defendants therein, and also commences another action against one of these defendants for the recovery of money only, the subject-matter of this second action being one which grows out of the transaction involved in the first action, and all of the parties to both actions stipulate that the two cases are to be consolidated as to the issues and tried to the court at once, the parties to the stipulation will not be heard to say that a portion of the case be treated as a jury case, but such consolidated action will be considered a case triable to the court, and the issues in the second action, as determined in the consolidated action, may be tried de novo in this court.

Though a party to an action may have been neither party nor privy to a preceding action, yet, where the issues in the later action involve title to and interest in property determined in the previous suit, this court will not again pass upon such title upon the same state of facts presenting precisely the same questions, in the absence of a showing that the former decision was manifestly wrong.

Appeal from District Court, Williams County; M. J. Englert, Judge.

Consolidated actions by L. R. Baird, as receiver of the Williams County State Bank, an insolvent banking corporation, against the City of Williston and another, in which N. B. Ludowese was interpleaded. From the judgment, plaintiff and named defendant appeal. Affirmed.Burdick, Shaft & Burk, of Fargo, for appellant Baird.

Fisk, Craven & Taylor, of Williston, for appellant City of Williston.

O'Hare, Cox & Cox, of Bismarck, for respondent Bank of North Dakota.

Owens & Nelson, of Williston, for respondent Ludowese.

BURR, J.

There are two actions involved on this appeal, both brought by L. R. Baird, as receiver of the Williams County State Bank.

In both cases one N. B. Ludowese was interpleaded as defendant, and his interest in the matter will be shown in the statement of facts. The first is an action wherein the plaintiff seeks to have title to certain real estate in the city of Williston quieted in him as against the defendants, the city of Williston and the Bank of North Dakota.

The city of Williston answers this complaint, and files therewith a cross-complaint, setting out the facts in general as set forth in the case of the city of Williston v. Ludowese et al., 53 N. D. 797, 208 N. W. 82, and alleges further that the plaintiff had served notice upon Ludowese, the city treasurer, not to pay over to the city any of the rents of the real estate involved or the collections made upon the real estate mortgages, and that the “plaintiff ought not to be admitted to say that the said lands described in said complaint were not affected by the said warranty deed and the covenants therein” given as set forth in the case of Williston v. Ludowese, supra; and, in a cross-complaint, prays that its title to said securities be confirmed, that this lien be foreclosed and the property sold to be applied upon its indebtedness. In this cross-complaint it alleges that, at the time of the giving of said securities, the Williams County State Bank “was a corporation duly organized and existing under the laws of the State of North Dakota; that said bank however, on or about the 11th day of June, 1923 suspended business as a bank and thereafter was adjudged insolvent and said plaintiff L. R. Baird thereafter and on or about January 1st, 1924 was duly appointed Receiver of said Bank.”

The plaintiff replies to this answer of the city of Williston, denying the city's right to the securities, claiming them as assets of the bank, alleging that the deal between the city treasurer and the bank as set forth in the reported case of Williston v. Ludowese was “in all things ultra vires, and null and void,” and that it holds said securities in trust for the plaintiff. He denies the lien claimed by the city and that the decision in this case of Williston v. Ludowese is binding on him. He admits the serving of notice upon the tenants not to pay rents to Ludowese or to the city, and asks that Ludowese be brought in as a defendant.

The bank of North Dakota answers the first case, and sets forth facts similar to the facts stated in the reported case of Williston v. Ludowese, and asks that plaintiff be adjudged to be the owner and entitled to the real property involved and that the interest of the bank of North Dakota as found in the reported case of Williston v. Ludowese be declared to be a first lien upon all of such property. To this answer the plaintiff replies, alleging that the Bank of North Dakota was not entitled to any claim upon the notes and real estate mortgages securing the same, that it paid nothing therefor, and that any agreement thereon was due and owing to the guaranty fund commission of the state of North Dakota, and that, if the bank holds notes thereof, on the face payable to it, the same are held in trust for the guaranty fund commission.

The Bank of North Dakota replies to the counterclaim and cross-complaint of the city of Williston, alleging that not only did the Williams County State Bank give to Ludowese notes and mortgages and a deed to the real estate and security for the loan or deposit of the money described in the case of Williston v. Ludowese, but also “a personal guarantee of said deposit in the sum of $12,000.00 jointly signed and delivered by one Bradley, one Milloy, one O'Laughlin and one Wilkinson, together with other and valuable security and that in addition thereto at the time that Ludowese made the loan the deposit of the bank as described in the former case” he was bonded in the favor of the city of Williston for the faithful performance of his duties as treasurer of the city of Williston in the sum of $50,000; that his deposit was a breach of trust as against the city, and made him and his bond liable for the full amount; that the defendant the city of Williston has “sufficient securities of value in their possession and under their control, including the personal liability of the said N. B. Ludowese and under his bond as treasurer * * * to fully reimburse the said city of Williston * * * without recourse to the mortgage and assignment of rents.”

The interpleaded defendant Ludowese answers the complaint of the plaintiff and the answers and counterclaims of the defendants, admitting he had been city treasurer, and that he had deposited the amount described in the reported case of Williston v. Ludowese and received the security therefor; that he holds the deed and these assignments in “trust for the benefit of said City of Williston, and to secure the said City, the payment of the money in the amount, together with interest thereof, as hereinbefore set forth”; that the plaintiff has ordered all the tenants renting from him not to pay any further rents to him; that he has collected rents from the real estate which together with interest amounts to $9,411.65, but that out of said sum the city of Williston has been required to pay for “taxes, repairs, insurance, attorney's fees, and expense of litigation the total sum during such period of five thousand two hundred and fifty three and 15/100 dollars (5253.15),” and that he has on hand the sum of $4,158.50; that he proceeded to foreclose one of the real estate mortgages, known as the Keltner mortgage, and that he received a sheriff's deed to the property mortgaged; that he foreclosed what was known as the Webb mortgage and secured a sheriff's deed therefor, and that he has collected rents from these lands so held under sheriff's deed in the sum of $1,099.53 and paid thereout for costs of foreclosure, taxes, attorney's fees, and necessary disbursements the sum of $912.75; that he has collected for himself for expenses in attending to the litigation and in fees for his time and services the sum of $1,744.43; that, in pursuance of the demand made upon him by the plaintiff, he “returned to the said plaintiff all of the notes set forth in said demand excepting the Keltner mortgage, the Ryeson mortgage, and the Webb mortgage, hereinbefore described and set forth and accounted for, and that the defendant never at any time collected or received any use or benefit therefrom, either for himself or for the city of Williston, excepting that your defendant did collect on the note listed and executed by one Gil Erickson, the sum of three hundred seven and 80/100 dollars ($307.80);” that he ceased to be treasurer in June, 1925, and S. M. Hydle succeeded him; that he tendered to the city of Williston and to his successor all of the aforesaid properties together with an accounting of the funds, but the city of Williston and his successor refusedto accept the same or any part thereof; since that time he has made sundry small collections of about $180; that he will be required yet to pay out for counsel fees and clerical work the sum of $600, and so he asks that he be allowed this sum that his account be settled and that he be discharged. It appears from this answer that, in addition to the deed to the real estate involved herein and the three real estate mortgages with the notes secured thereby, the defendant had received from the Williams County State Bank other notes as security for this illegal deposit, all being the subject of the recorded case of...