Bank of Chelsea v. School Dist. No. 1, Rogers County
| Decision Date | 09 January 1917 |
| Docket Number | 7452. |
| Citation | 162 P. 809,62 Okla. 185,1917 OK 84 |
| Parties | BANK OF CHELSEA v. SCHOOL DIST. NO. 1, ROGERS COUNTY, ET AL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
A school district warrant is not a valid charge until registered by the treasurer of the school district issuing the same.
The nonexistence of a cause of action when suit is brought is a fatal defect which cannot be cured by the accrual of a cause while the suit is pending.
Where a suit is brought upon school district warrants, which have not been registered by the treasurer of the district, but which are registered after the judgment in the action on the warrants, pursuant to mandamus against the treasurer in another suit brought during the pendency of the action on the warrants, the registration being dated back of the date of the institution of the action upon the warrants, such registration cannot give vitality to the purported cause of action included in the suit on the warrants, judgment having already been rendered therein, and such registration, after the judgment, is not ground for a new trial on account of newly discovered evidence.
A party will not be entitled to a new trial upon the ground of newly discovered evidence, where he knew of the absence of the evidence at the time of going to trial, unless it appears that such party took proper legal steps to procure a continuance or delay of the trial on account of the absence of the evidence.
Record examined, and held, that party moving for new trial on account of newly discovered evidence has not shown diligence.
A final judgment in an action of mandamus, requiring a school district treasurer to register certain warrants of his district, which is not appealed from, is res judicata as to the validity of the warrants when registered in pursuance thereof.
Commissioners' Opinion, Division No. 3. Error from County Court, Rogers County; Walter W. Shaw, Judge (Frank Ertell, Special Judge on motion for new trial).
Action by the Bank of Chelsea against School District No. 1, Rogers County, a corporation, and others. There was a judgment for defendants, and plaintiff brings error. Affirmed as modified.
C. B Holtzendorff and P. W. Holtzendorff, both of Claremore, for plaintiff in error.
W. H Kornegay, of Vinita, for defendants in error.
Plaintiff in error instituted in the justice court of Rogers county two separate suits against defendant in error upon four school district warrants for teachers' salaries. From judgments in favor of plaintiff in each case, the school district appealed to the county court. In the county court the two cases were consolidated for the purpose of trial, the trial resulting in judgment for the defendant.
The warrants in question were issued during the fiscal year beginning July 1, 1911, without having been registered by the treasurer of the school district, and were purchased of the payees by the plaintiff bank, not having been registered until after the rendition of the judgment in the county court on December 30, 1914, which denied recovery to plaintiff on account of the lack of registration of the warrants, and from which judgment plaintiff filed an appeal in this court upon June 18, 1915.
On August 29, 1913, and during the pendency of the actions in the county court, the plaintiff, the Bank of Chelsea, filed in the district court of Rogers county against the school district treasurer a mandamus proceeding to compel the registration of the warrants; and on May 6, 1915, final judgment was rendered by the said district court in such mandamus proceeding, granting a peremptory writ of mandamus against Homer Denny, county treasurer of Rogers county and ex officio treasurer of defendant school district, as the successor in office of the original defendant in the mandamus action; and, in compliance with that writ, the said county treasurer, as ex officio treasurer of the school district, thereafter indorsed upon the warrants in question registration thereof as of the respective dates of issuance of the warrants in November and December, 1911.
Upon May 14, 1915, the Bank of Chelsea, plaintiff in the actions on the warrants, filed in the original action in the county court a petition for a new trial upon the ground of newly discovered evidence; the proposed newly discovered evidence being the warrants in question, with the indorsements of registration thereon, made, as above stated, in pursuance of the said writ of mandamus, and after entry of judgment in the action in the county court and the overruling of a former motion for new trial upon other grounds. The petition for a new trial, upon the ground of newly discovered evidence, was denied in the county court upon February 14, 1916; and upon May 11, 1916, the Bank of Chelsea filed in this court in the same cause with the other appeal what is termed a supplemental petition in error, appealing from the judgment of the county court, which denied the petition for a new trial upon the ground of newly discovered evidence.
The two appeals have been filed in this court as one cause, and have been so briefed by the parties without objection. For convenience we will treat the two appeals as one cause without passing upon the propriety of this method of procedure on appeal.
We are of opinion that plaintiff was without a valid cause of action at the time of the institution and pendency of the cases in the lower court.
Section 5, c. 80, Session Laws 1911, reads as follows, viz.:
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