City of Ft. Pierre v. Hall

• Decision Date: 02 August 1905
• Citation: City of Ft. Pierre v. Hall, 19 S.D. 663, 104 N.W. 470 (S.D. 1905)
• Parties: CITY OF FT. PIERRE v. HALL.
• Court: South Dakota Supreme Court

104 N.W. 470

19 S.D. 663

CITY OF FT. PIERRE v. HALL.

Supreme Court of South Dakota

August 2, 1905

Appeal from Circuit Court, Stanley County.

Action by the city of Ft. Pierre against Eliza Hall. From an order sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

John F Hughes, for appellant. John A. Holmes, for respondent.

FULLER J.

At the trial of this action to permanently restrain the enforcement of a judgment based on two city warrants, aggregating $523.30, the sufficiency of the facts stated in the complaint was challenged by a general demurrer, and this appeal is from an order sustaining the same.

Eliminating incongruous averments and some of the conclusions of law, it is alleged, in substance, that one of the warrants issued in legal form by the proper officials of the city of Ft. Pierre on the 5th day of February, 1894, and upon that day duly registered, "Not paid for want of funds," was drawn by mistake on the general fund, instead of a fund derived from special assessments against property in front of which the payee named in the warrant had constructed a sidewalk and that the defendant thereupon purchased the same at a very liberal discount, with full knowledge of such mistake; that afterward the defendant, Eliza Hall, instituted an action and filed her verified complaint, wherein it is falsely stated that the above-mentioned warrants are valid obligations of the city, and judgment by default on said warrants was rendered and entered on the 6th day of March 1900. It is further alleged "that a portion of the said warrants were valid warrants of this plaintiff, but the same were not due, and no action had accrued on the same at the time of entering said judgment." Assuming that proof of the allegations of the complaint would have been sufficient to defeat the action on the warrants, we will determine from a consideration of all the facts and circumstances whether plaintiff's failure to obtain justice is due to negligence in offering no defense to that action. Neglect to appear and answer therein, and this tardy application to a court of equity to permanently restrain the enforcement of the judgment by default, is sought to be justified in the complaint as follows: "That since the issuance of said warrant, and at the time of rendition of such judgment, and up until a few weeks since, the mayor, council, and other officers of this plaintiff had no knowledge or information in regard to the invalidity of said warrant, or of its not having been a legal claim and demand against this plaintiff, and had no knowledge of the facts relating to its issuance, as hereinbefore set forth. That at the time of rendition of said judgment this plaintiff or its officers or agents had no knowledge of its said defense to said action, nor could they have discovered the same by the exercise of proper and due diligence. That it was a difficult matter to find and locate the records and papers relating to the issuance of said warrant, and upon which the same was based, said records and papers being also indefinite, and making it a difficult matter to trace the history of said warrant; and at the time of rendition of said judgment, and at all times herein mentioned, there was nothing to call the attention of the officers and agents of this plaintiff to the fact of the invalidity of this warrant, and this plaintiff and its said officers had no knowledge of the same until within the last few weeks. That about thirty days since, when this warrant was presented for payment, owing to the fact that it had been lately discovered that other illegal judgments had been taken against this plaintiff, it occurred to some of the officers of this plaintiff that it might be advisable to investigate the records in relation to this and other warrants. This investigation resulted in discovery by said officers of the facts as hereinbefore set forth in relation to the illegality of this warrant, and of all the matters in relation to it as hereinbefore set forth. That, owing to the sworn statements made by defendant in her complaint in said action, wherein she alleged that the said warrant was based upon a good and valid consideration and was duly and properly drawn, the court was misled and induced to sign the decree in said action; and said decree was based upon the warrants as hereinbefore set forth, and including this last-described...