City of Boise City v. Randall

• Decision Date: 05 December 1901
• Citation: 66 P. 938,8 Idaho 119
• Parties: BOISE CITY v. RANDALL
• Court: Idaho Supreme Court

66 P. 938

8 Idaho 119

BOISE CITY v. RANDALL

Supreme Court of Idaho

December 5, 1901

PARTIES PLAINTIFF.-Where a suit is brought against the mayor and common council of a city, and an injunction issued thereon and thereafter the suit is dismissed by the plaintiff, an action to recover on the injunction bond may be brought in the name of the city, as it is the real party in interest.

NO DEFENSE.-It is no defense to an action on an injunction bond to show that the suit in which the writ of injunction was issued was not brought against the proper party.

WANT OF JURISDICTION.-Want of jurisdiction to grant an injunction is no defense in an action on the bond.

EMPLOYMENT OF SPECIAL COUNSEL BY CITY.-When a necessity therefor arises and the interests of the municipality require it, the city counsel may employ special counsel.

(Syllabus by the court.)

APPEAL from District Court, Ada County.

Affirmed with costs.

Hawley & Puckett, for Appellant.

This action is brought in the name of Boise City, as plaintiff. The undertaking sued upon was given in a suit against M. Alexander, as mayor, and J. D. Jones, and others as the common council of Boise City, and the sureties undertake to pay such costs, etc., as such party may sustain by reason of the injunction, etc. By the terms of this undertaking the appellants, as sureties upon the bond in question, became responsible, not to Boise City, the plaintiff here, but to certain officers of Boise City. It is a principle of the law governing bonds of this kind that the liability of a surety on an injunction bond is strictly construed, and will not be extended by construction beyond the terms of the bond itself. (2 High on Injunctions, 1635, and cited in note 1 as follows: Ovington v. Smith, 78 Ill. 250; Webber v. Wilcox, 45 Cal. 301; Tarpey v. Shillenberger, 10 Cal. 390; Anderson v. Falconer, 34 Miss. 257; Hall v. Williamson, 9 Ohio St. 17.) The general rule is that other than the persons enjoined are not allowed damages in actions on bonds, although they may be interested in the subject matter of the suit. (Holloway v. Holloway, 103 Mo. 274, 285, 15 S.W. 536; Andrews v. Glenville Woolen Co., 50 N.Y. 282; Richardson v. Allen, 74 Ga. 719; Shaver v. McLendon, 26 Ga. 228.) The corporation must be sued in the corporate name, and not in that of its officers. (Young v. Barden, 90 N.C. 424; Brittan v. Newland, 2 Dev. & B. 363; Mauney v. High Shoats Mfg. Co., 4 Ired. Eq. 195; Insurance Co. v. Hicks, 3 Jones, 58.) Another point we desire to make is that the charter of Boise City provides for the selection of a city attorney. The ninth finding of fact alleges that the money expended and which it is sought to recover from the bondsmen (the appellants here) was paid to Messrs. Kingsbury & Parsons, who were employed in that behalf. No reason is given why the learned attorney, the same gentleman then occupying that position is now in charge of this action on the part of respondents, was not called upon to perform his official duty and defend that action. No reason is given why the charge of said action was placed in the hands of the special counsel named. We urge that a city attorney duly elected, or appointed and qualified, must, unless some reason exists disqualifying him, have charge of the actions affecting the city, and that no power is vested in a city council authorizing them to ignore the city attorney and place other counsel in charge of an action against the city. Charters of municipal corporations are special grants, and whatever is not given expressly, or as a necessary means to the execution of expressly given power, is withheld. (Douglas v. Mayor of Placerville, 18 Cal. 648; Oakland v. Oakland Waterfront Co., 118 Cal. 177, 50 P. 277; Linden v. Case, 46 Cal. 172; Foster v. Coleman, 10 Cal. 279; County of San Joaquin v. Jones, 18 Cal. 327; Robinson v. Supervisors, 16 Cal. 212; Smith v. Nashville, 4 Lea (Tenn.), 69.)

J. J. Blake, for Respondent.

The contract having been made for the benefit of the city, it is the real party in interest, and entitled to bring this action. (Idaho Rev. Stats., sec. 4090; United States v. Shoup, 2 Idaho 493, 21 P. 656; Coffin v. Richards, 6 Idaho 741, 59 P. 562.) "After parties have obtained an injunction and stayed their adversaries' proceedings, it is too late for them to set up as defense for a suit on an injunction bond the want of jurisdiction to grant the injunction." (Loomis v. Brown, 16 Barb. 325.) The power to employ special counsel to appear in litigation in which it may be involved when, in the exercise of a reasonable discretion, the interests of a municipality may require it. The results from the power of which the corporation is invested to make contracts to own property and to incur liabilities in the exercise of which the corporation is liable at any time to be involved in litigation in courts where the respective rights of the parties must be ultimately determined." (City of Denver v. Webber, 15 Colo. App. 511, 63 P. 804; 1 Dillon on Municipal Corporations, 4th ed., sec. 479; City of Memphis v. Adams, 9 Heisk. 526, 24 Am. Rep. 331; Tiedeman on Municipal Corporation, sec. 176; Ellis v. Washoe Co., 7 Nev. 291; Butternut v. O'Malley, 50 Wis. 333, 7 N.W. 248; Rice v. Gwinn, 5 Idaho 394, 49 P. 412.)

SULLIVAN, J. Quarles, C. J., and Stockslager, J., concur.

OPINION

SULLIVAN, J.

This is an action to recover on an injunction bond. It appears from the record that an action was commenced in the district court in and for Ada county by one R. E. Emerson against the mayor and common council of Boise City to restrain the defendants, as such officers, from awarding a certain contract for the construction of sewers in said city, and that, for the purpose of securing an injunction therein, said Emerson procured the appellants here to execute an injunction bond for the sum of $ 250, which bond was duly filed in said action, and a writ of injunction issued and served upon said officers, who were thereby restrained from letting said contract for the construction of said sewers. Thereafter, upon motion of counsel for the plaintiff in said action, said suit was dismissed and judgment of dismissal thereon entered, thus holding or adjudging that said writ of injunction was wrongfully issued. This action is brought in the name of Boise City, as plaintiff, against the sureties on said injunction bond. The cause was tried by the court without a jury, and finding of facts, conclusions of law, and the judgment entered were in favor of the plaintiff. This appeal is from the judgment.

Several alleged errors are presented on this appeal. The first we shall consider is that this action is brought in the name of Boise City, and the undertaking sued on was given in a suit where the mayor and common council of said city were defendants. There is nothing in this contention, as said officers were acting in the letting of said sewer contract in their official capacity as mayor and...