Board of Commissioners of Natrona County v. Casper National Bank

• Citation: 105 P.2d 578,56 Wyo. 132
• Decision Date: 12 September 1940
• Docket Number: 2132,2133
• Parties: BOARD OF COMMISSIONERS OF NATRONA COUNTY v. CASPER NATIONAL BANK; SAME v. WYOMING NATIONAL BANK OF CASPER
• Court: United States State Supreme Court of Wyoming

105 P.2d 578

56 Wyo. 132

BOARD OF COMMISSIONERS OF NATRONA COUNTY v. CASPER NATIONAL BANK;

SAME v. WYOMING NATIONAL BANK OF CASPER

Nos. 2132, 2133

Supreme Court of Wyoming

September 12, 1940

ERROR to the District Court, Natrona County; HARRY P. ILSLEY Judge.

Actions by the Casper National Bank, a national banking corporation and the Wyoming National Bank of Casper, a corporation against the Board of the County Commissioners of the County of Natrona, to recover as assignees on certain certificates of indebtedness issued to E. E. Enterline, E. Paul Bacheller and Edward E. Murane. To review a judgment for the plaintiffs, defendant brings error.

Reversed and remanded.

For the plaintiff in error, there was a brief and an oral argument by Vincent Mulvaney of Casper.

Plaintiff's petition in the Wyoming National Bank case does not state a cause of action and the court erred in overruling defendant's demurrer thereto. Said action is barred by the statute of limitations, since it was brought more than eight years after the cause of action accrued. Section 89-410, R. S., Seymour v. Railway (Ohio) 4 N.E. 236. Salaries and fees are always statutory. In the absence of a statute providing for the payment of officers of compensation for their work, they can recover nothing. Santa Cruz County v. McKnight (Ariz.) 177 P. 256; Phoenix v. Drinkwater, 52 P.2d 1175; Morris v. Standard Oil Company, 252 P. 605; Banks v. Yolo County (Cal.) 37 P. 900; Board of County Commissioners v. Van Slyck (Kan.) 35 P. 299. The court erred in the Wyoming National Bank case in sustaining plaintiff's demurrer to defendant's first defense, as alleged in defendant's answer. In the Casper National Bank case, the court erred in sustaining plaintiff's demurrer to defendant's first defense. In the Casper National Bank case, the court erred in sustaining plaintiff's demurrer to that portion of defendant's third amended answer contained in pages one to four, inclusive. The above assignments of error consist of the plea of res adjudicata and stare decisis. In the case of Robertson Investment Company v. County Treasurer, 38 P.2d 617, it was held that the certificates of indebtedness upon which suit has been brought in this action were cancelled and rescinded. The resolution adopted by the County Commissioners on June 7, 1928, for the employment of counsel to defend cases numbered 6925, 6947, 6948 and 6971 admitted in evidence, related to the only services performed by said attorneys by the terms of said resolution. In no case was the county sued in its proper corporate name. None of the actions were prosecuted to final judgment and none of said cases were heard on their merits. A resolution was passed by the Board of County Commissioners of Natrona County on September 7, 1928, rescinding the previous resolution of June 7, 1928, and cancelling the certificates of indebtedness for $ 2500.00 each, which are the subject matter of these actions. The County Board had lawful authority to revoke the allowance of said claims. State v. Patterson (Wyo.) 38 P.2d 617. The county was not a party to said suits, nor was any judgment prayed for against said county. A lawyer cannot recover for services rendered in the same suit to parties having opposing interests. Strong v. Brennan (Ill.) 47 L. R. A. 792; 7 C. J. 823; 5 Amer. Juris. 296 P. 64; Anderson v. Eaton (Cal.) 293 P. 788; Gillette v. Newhouse Realty Company (Utah) 282 P. 776; Logan v. Logan (Ind.) 180 N.E. 32. The judgments of the trial court should be reversed.

For the defendants in error, there was a brief by G. R. Hagens, R. H. Nichols, Durham & Crowell, E. E. Enterline and Edward E. Murane, all of Casper, and oral argument by Messrs. Hagens, Enterline and Nichols.

Defendants in error have filed a motion to affirm the judgments or dismiss the petition in error. Said motion has been partly determined by the opinion of this court. That portion of the motion attacking the record upon the ground that there has been no compliance with Rule 37, concerning the preparation of the abstract of the record and Rule 14 concerning the preparation of briefs, is still under advisement and under the opinion of this court remains for consideration in the final determination of the cause. Board of Commissioners v. Casper National Bank (Wyo.) 96 P.2d 564, 569. The certificates of indebtedness declared upon in both cases are contracts, agreements or promises in writing, under the provisions of Section 89-409, R. S. 1931, and actions may be maintained if brought within ten years after the same become due and payable. The liability of the county in this case was not created by statute, but by express contract made by the Board of Commissioners under authority given it to employ attorneys. Section 29-306 and Sec. 30-402, R. S. 1931; Appel v. Shutter-Cottrell, 9 Wyo. 187. The action is predicated upon written certificates of indebtedness issued pursuant to and under a contract made by the Board of County Commissioners. The right to institute actions on the certificates was upheld in State ex rel. Robertson Co. v. Patterson, 47 Wyo. 416. The demurrer of plaintiff was properly sustained to the first defense of the answer in the Wyoming National Bank case, and the demurrer of plaintiff to the first defense set forth in the third amended answer in the Casper National Bank case was properly sustained. Phillips on Code Pleading, Secs. 235 and 236, pp. 212-214; Iba v. Central Association, 5 Wyo. 355; Mutual Life Ins. Co. v. Summers, 19 Wyo. 441. The merits of this controversy were not decided in the case of Robertson Company v. Patterson, supra. Where a party seeks to plead estoppel by judgment, the pleading must show a substantial identity of parties and subject matter, and must be the same cause of action declared upon in the former action. 34 C. J. 984; 15 R. C. L. 455, p. 982; Converse v. Sickles, 48 A. S. R. 790; 15 R. C. L. 962, 973 and 1012; Cook v. Elmore, 27 Wyo. 163. After the issuance of the certificates, the Board had no right to rescind its contract and cancel the certificates. Appel v. Shutter-Cottrell, 9 Wyo. 187; McConnaughy v. Jackson, 35 P. 863. A change in the membership of the Board, after the employment of attorneys, will not authorize the rescission of the contract of employment or the cancellation of the certificates. North Laramie Land Company v. Hoffman, 28 Wyo. 183; Cope v. Sutter County, 274 P. 750. The judgments are sustained by sufficient evidence, are not contrary to the evidence and are not contrary to law. Appel v. State, supra; State ex rel. Robertson v. Patterson, 47 Wyo. 416. Itemization of services in the resolution of June 7, 1928, has been held sufficient by this court in Appel v. State, supra. The courts will not make contracts for the parties nor interfere with them, in the absence of fraud. 13 C. J. 365; Fraser v. Walker (Colo.) 173 P. 1088; Gertner v. Limon National Bank (Colo.) 257 P. 247; Casper National Bank v. Currie, 51 Wyo. 284. In these actions, there was no fraud or irregularity alleged or proven. Appel v. State, supra; Heisler v. Hamilton Mines Co. (Ore.) 223 P. 735; Smith v. Stone, 21 Wyo. 62; Goldberg v. Miller (Wyo.) 96 P.2d 570. The contention that plaintiffs were not suing the county in its proper corporate name is absurd and frivolous. The temporary injunction granted in case No. 6925 was improvidently granted. State ex rel. Blair v. Kuhr (Mont.) 283 P. 758.

BLUME, Justice. RINER, Ch. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

These suits were consolidated for the purpose of hearing. They were brought to recover judgment upon three certificates of indebtedness (warrants) issued by the county commissioners of Natrona County, each for the sum of $ 2500, issued respectively to E. E. Enterline, E. Paul Bacheller and Edward E. Murane, attorneys at law, each dated June 7, 1928. Judgment was rendered by the trial court in favor of the plaintiffs, and from that judgment the county has brought the case to this court by petition in error.

The certificates of indebtedness were issued on June 7, 1928 pursuant to a resolution of the then Board of Commissioners of Natrona County, adopted on that day and spread on the records of the county, as retainers and attorney fees of the respective payees of the certificates to defend four different actions brought in March and April, 1928, as follows: The first action was one brought by W. F. Henning, a tax-payer, on behalf of himself and other tax-payers against the board of county commissioners of Natrona County, Earle G. Burwell, J. E. Scott and Earle D. Holmes, as county commissioners of Natrona County, Earle G. Burwell as chairman of the board and the county clerk and county treasurer, to enjoin the payment of $ 40 per month to the county treasurer in addition to her regular salary of $ 166.66 per month, for services claimed by her to have been performed for the county other than her duties as county treasurer. It was alleged that for a number of months this additional salary has been paid to her, contrary to the advice of the county attorney, given to the county commissioners; that she was not entitled to more than the regular salary provided by law, and that she in fact had not rendered any services other than the services required by law to be rendered by her. The petition contains the following commencing paragraph: "Comes now the plaintiff and suing on behalf of himself and of all other tax payers of Natrona County, Wyoming, similarly situated, for cause of action against the above named defendants and each of them, and not suing the county of Natrona, in the State of Wyoming, but suing among other defendants the Board of County Commissioners of said county as an official board of said county, says:". The second action was similar in all...