Board of Sup'rs of Apache County v. Udall, Civil 3102

• Decision Date: 13 July 1931
• Docket Number: Civil 3102
• Citation: 38 Ariz. 497,1 P.2d 343
• Parties: BOARD OF SUPERVISORS OF APACHE COUNTY, STATE OF ARIZONA, Consisting of BERT J. COLTER, BURR W. PORTER and J. ALBERT BROWN, Members of Said Board of Supervisors, Appellants, v. H. G. UDALL and DORINDA UDALL, His Wife, Appellees
• Court: Arizona Supreme Court

1 P.2d 343

38 Ariz. 497

BOARD OF SUPERVISORS OF APACHE COUNTY, STATE OF ARIZONA, Consisting of BERT J. COLTER, BURR W. PORTER and J. ALBERT BROWN, Members of Said Board of Supervisors, Appellants, v. H. G. UDALL and DORINDA UDALL, His Wife, Appellees

Civil No. 3102

Supreme Court of Arizona

July 13, 1931

APPEAL from a judgment of the Superior Court of the County of Apache. P. A. Sawyer, Judge. Judgment affirmed.

Mr Dodd L. Greer, County Attorney, for Appellants.

Mr. J Smith Gibbons and Mr. W. E. Ferguson, for Appellees.

Mr John C. Gung'l, United States Attorney, Amicus Curiae.

OPINION

LOCKWOOD, J. H.

G. Udall and Dorinda Udall his wife, hereinafter called plaintiffs, brought suit against Bert J. Colter, Burr W. Porter, and J. Albert Brown, as members of the board of supervisors of Apache county, hereinafter called defendants, alleging in substance that plaintiffs were taxpayers of Apache county, and that defendants were the supervisors thereof; that said defendants had attempted to enter into a contract with the United States of America through the Secretary of Agriculture, by the terms of which defendants were to secure at the expense of Apache county a right of way for a certain road to be constructed by the secretary, under the supervision and at the expense of the United States, and maintained by said United States for a term of two years, after which said road to to be maintained indefinitely by Apache county to the satisfaction of the said secretary at an estimated cost of $300 per mile. It was further alleged that defendants had not either before or since the making of said contract adopted a budget for Apache county covering the expense of said right of way and maintenance of said road in accordance with their agreement, nor had they provided therefor from any other fund; that the road referred to was not a county road, but a federal road project, and that the terms of the respective defendants as supervisors would expire before the liability for the maintenance for the road as aforesaid would accrue. The prayer was that the defendants be enjoined from the acquiring of the right of way aforesaid, or the expenditure of public money thereon, or doing anything that would in any way impose any liability on the taxpayers of Apache county by reason of such alleged contract.

The complaint was filed February 23d, a demurrer thereto was filed February 27th, and an outside judge was called to sit in the case. From that time the record shows a peculiar condition. Although no answer had been filed, the case was submitted to the court on the same day on a stipulation of facts. The next day the demurrer was overruled; the day after findings of fact and an opinion were signed by the trial judge at Holbrook, and transmitted to the clerk of the court at St. Johns. A motion for new trial was filed March 10th. The next day the opinion and findings were filed. March 15th the United States district attorney filed a document which reads in part as follows:

"Suggestion of the United States of America. Filed

march 23, 1931.

"Comes now the United States of America, by John C. Gung'l, United States Attorney for the District of Arizona, who has heretofore been duly authorized by the Attorney General of the United States, appearing herein for the purpose of suggestion only, for the information of the Court, but explicitly refraining from submitting itself of any of its rights, property or policies to the jurisdiction thereof, does respectfully suggest to the Court, as follows: . . ."

On March 16th the clerk of the court gave notice of the filing of the opinion as provided by section 3697, Revised Code of 1928. The order overruling the motion for new trial was filed March 18th, while the clerk's minute entry of judgment on the opinion was made April 10th. The next day this appeal was taken. The reason for this rather unusual procedure is not shown, but in view of the presumption that public officers do their duty, we must assume some great public necessity, not apparent on the face of the record, justified it.

It is first contended that the judgment is void as having been rendered on Sunday, March 1st. The legal judgment was the entry of the clerk, made April 10th. Brewer v. Morgan, 33 Ariz. 225, 263 P. 630; Slaughter v. First Nat. Bank, 34 Ariz. 26, 267 P. 416. This was on Friday. The fact that the trial judge signed his decision in Holbrook on Sunday has no bearing on the date of the judgment itself.

No motion or request was made by the Secretary of Agriculture or the United States for leave to intervene in the action at any time, so far as the record shows, but it is urged by defendants that since this case involves the determination as to the validity of a contract to which the secretary was a party, he was an indispensable party in the action. We have considered the question of parties in the recent case of Oglesby v. Chandler, 37 Ariz. 1, 288 P. 1034. Therein we say as follows:

"Parties to an action are divided into three classes: Proper, necessary, and indispensable. The difference between these three classes is well defined in the case of Williams v. Bankhead, 19 Wall. (86 U.S.) 563, 571, 22 L.Ed. 184. In that case the court says: 'The true distinction appears to be as follows: First. Where a person will be directly affected by a decree, he is an indispensable party unless the parties are too numerous to be brought before the court, when the case is subject to a special rule. Secondly. Where a person is interested in the controversy, but will not be directly affected by a decree made in his absence, he is not an indispensable party, but he should be made a party if possible, and the court will not proceed to a decree without him if he can be reached. Thirdly. Where he is not interested in the controversy between the immediate litigants, but has an interest in the subject-matter which may be conveniently settled in the suit, and thereby prevent further litigation, he may be a party or not, at the option of the complainant.'

"Under our Code, the objection that there is a non-joinder of necessary parties must be taken by demurrer or answer, and, if not so taken, it is deemed to be waived. Section 3777, Revised Code of 1928. It is only when the parties are indispensable that the question may be raised in the appellate court. Was the board an indispensable party in this action?

"We think that a fair test is whether or not the judgment rendered herein would be res adjudicata as against the board in any action brought by or against it and involving any of the issues of this case."

It is obvious that in no sense does the judgment rendered herein run against the Secretary of Agriculture. It affects the defendants as supervisors of Apache county, and them alone. If the secretary should for any reason bring an action against the supervisors for a breach of their contract, the plaintiff in that action would have a right to have relitigated every issue of law and fact presented in the present suit. Of course, it might be that this court would as a matter of stare decisis follow the principles laid down in the present case, but it would not be bound to do so under the doctrine of res adjudicata. We think, therefore, that the Secretary of Agriculture was not an indispensable party to the action.

He was, however, both a proper and a necessary party, and had the question been raised by special demurrer or by answer, it would have been error for the trial court to refuse to allow him to intervene. Nay, more; had he asked permission to become a party at any time before March 18th (for before the motion for new trial was ruled on or the judgment rendered he had notice of the pendency of the action), and had the court refused to grant such request, or, having granted it, denied the motion for new trial, it would in all probability have been an abuse of discretion. But although advised of the situation some time before March 18th, he made no request for intervention. The United States district attorney filed a mere "suggestion," which expressly stated that the United States (for which, of course, the Secretary of Agriculture was acting) did not submit itself to the jurisdiction of the court. Such being the case, we are of the opinion that the trial court did not err in overruling the motion for new trial on the ground that the secretary was either an indispensable or a necessary party.

We consider, then, whether or not the court erred in its decision on the merits. The contract, as a result of which this litigation arose, provided for the construction of a certain road by the Secretary of Agriculture, and then contained, among other clauses, the following (the "Cooperator" mentioned therein being Apache county):

"The right of way upon which to construct the said project will be procured by and at the expense of the Cooperator, except where the necessary right of way is upon Government lands, and the cost incidental thereto will be paid by the Cooperator. . . .

"The Secretary will repair and maintain the said project for a period of two years from the date of completion of the improvements out of federal funds to be made available.

"At the expiration of the above stated period of two years maintenance by the Secretary, the Cooperator will accept the project and from that time repair and maintain the same to the satisfaction of the Secretary without cost to the Secretary. It is estimated that to repair and maintain the project properly will require an annual expenditure of $300 per mile. . . ."

The following appeared in the stipulation of facts:

"It is further stipulated that the budget of the County of Apache, as adopted by the Board of Supervisors and under which they were acting at the time they entered into...