Clarke v. Beadle County
| Decision Date | 03 September 1918 |
| Docket Number | 4316. |
| Citation | 169 N.W. 23,40 S.D. 597 |
| Parties | CLARKE et al. v. BEADLE COUNTY et al. |
| Court | South Dakota Supreme Court |
Suit by Richard W. Clarke and another against the County of Beadle and others, for an injunction. Decree for defendants, and plaintiffs appeal. On motion to dismiss appeal. Denied.
A. W Wilmarth, of Huron, for appellants.
A. A Chamberlain and A. K. Gardner, both of Huron, for respondents.
The county commissioners of Beadle county having entered into a contract with the Iowa Bridge Company for the building of certain bridges, plaintiffs, alleging the invalidity of such contract, brought this action, on behalf of themselves and other taxpayers of such county, to restrain the county and its officers from carrying out such contract and making payments thereunder, and asked for such other and further relief as to the court might seem just and equitable. A temporary restraining order was denied. Afterwards the bridge company was made a party defendant. The cause was then tried upon its merits, and findings, conclusions, and judgment entered in favor of defendants. From such judgment this appeal was taken, but no supersedeas bond was furnished. After appellants' brief upon appeal had been filed respondents moved a dismissal of the appeal, supporting such motion by affidavits from which it appears that the bridge company, pending the proceedings in the lower court and in this court, has completed its contract, and has received payment from the county for the work done. Respondents contend that there is left but a moot question, and that this court should not retain this appeal for the purpose of passing upon such question.
Appellants contend that this motion cannot be presented upon affidavits, and that the court can only consider the record upon appeal. In this appellants are in error. Silvius v. Brunsvold, 32 S.D. 252, 142 N.W. 944.
Respondents rely upon the ruling of this court in C., M. & St. P. Ry. Co. v. Sioux Falls, etc., 28 S.D. 471, 134 N.W. 46, and Holter v. Wagoner, 32 S.D. 137, 142 N.W. 175. The decision in the first-mentioned case is not in point. The appeal therein was from an order refusing a temporary injunction, which order could not be pleaded as res judicata in any proceeding brought seeking alternative relief. It is true that in the latter case the proposition hereinafter discussed was suggested, but no authorities were cited in support thereof, and we failed to give that consideration which it otherwise should have received. We failed to note and consider that, though through no fault of the plaintiff a situation had arisen making it impossible to grant him the relief sought, he yet might be entitled to alternative relief in that action or to seek other relief in another action, and further to note and consider that, by dismissing the appeal and thus allowing the judgment of the lower court to stand, we allowed such judgment to stand as a bar to alternative relief in that action and as res judicata in any other action that might be brought based upon the alleged invalidity of the contract. We are of the opinion that the majority opinion in that case was erroneous.
An appellate court should not retain an appeal for the mere purpose of deciding a purely moot question; and, whenever a change in circumstances pending an appeal is such that the appeal does present but a moot question, such court should dismiss same. However, both reason and authority support the proposition that, whenever the judgment, if left unreversed, will preclude the party against whom it is rendered as to a fact vital to his rights, such as to the validity of a contract upon which his rights are based, it cannot properly be said that there is left before the appellate court but a moot question, even though on account of changed conditions the relief originally sought by appellant cannot be granted upon the reversal of such judgment. 2 R. C. L. 170; 4 C. J. 576.
It must be remembered that the change in circumstances upon which this motion is based was not brought about through the acts or efforts of appellants-they are not in any wise responsible for the fact that there has been such change in circumstances since the commencement of the action. If appellants were entitled to injunctional relief, it was because a right had been violated. 22 Cyc. 749. This right was their right, as taxpayers, to have the contract entered into in accordance with the requirements of the statutes enacted for the taxpayers' protection. The fact that such relief cannot now be granted in no manner justifies this court in allowing an erroneous judgment to stand unreversed, thus leaving the fact that appellants' rights had been violated adjudicated against them and thus barred of all alternative remedies which otherwise would be theirs. If we should hold the contract invalid, the trial court may then, under the general prayer for relief, be able to give to the taxpayers, through these appellants and in this action, alternative relief in the way of money damages; or appellants, if successful here, might bring another action, as was done in McMillan v. Barber Asphalt Paving Co., 151 Wis. 48, 138 N.W. 94, Ann. Cas. 1914B, 54. In that case it was said:
We would call attention to the facts disclosed by the opinion in McMillan v. Paving Co. and in the "other action" referred to in the above quotation, being the action reported on appeal in McMillan v. City, 139 Wis. 367, 120 N.W. 240. It has been suggested that the facts here are to be distinguished from those disclosed in the Wisconsin cases because in those cases the alleged grounds of invalidity of the contract involved were fraud and collusion. It certainly makes no difference in a taxpayer's rights to an injunction whether the contract between the municipal corporation and the contractor is void, as claimed in this case, owing to a failure to comply with statutory provisions necessary to the validity of such contract. Certainly one's rights to an injunction based upon the absolute invalidity of a contract are as great as are his rights to an injunction based upon the voidability of a contract. In McMillan v. City, it will be found that a taxpayer was attempting to restrain the city from carrying out a contract entered into with a paving company. Upon the appeal it was held that the trial court erred in refusing the injunctional relief. The paving company was not a party to that action. Thereafter the plaintiff in that action brought the other action to recover from the paving company the amount of a special improvement bond which had been received by the paving company and by it assigned to a third party. The court held that, although the paving company was not a party to the first action, it was bound thereby because of the fact that its attorney, while appearing therein for the city, was in reality appearing for the paving company. That question is not presented in the case before us, because the bridge company is made a party to the pending action. In the Wisconsin cases it appears from the facts appearing in the second action that, pending the appeal in the first action, the contract had been completed and the bonds turned over, just as it is alleged has been done in this case. In the case against the city there does not appear to have been any motion to dismiss the appeal upon the ground that there was but a moot question left; but, if such motion had been made, it can readily be seen that it should have been overruled for the reason that there was left more than a moot question. That there was more than a moot question left is shown from the very fact of the success of the plaintiff in the second action. If, in the first of the Wisconsin cases, the appellate court had dismissed the appeal, thus leaving the judgment of the trial court unreversed, such judgment would have stood as res judicata against McMillan, and would have barred his recovery in the other action; and yet, as a matter of right, as found by the appellate court, although circumstances had arisen so that the relief to which he was entitled in the first action could not then be granted him, having been entitled to such relief, he was entitled, in lieu thereof, to alternative relief by way of damages. We have exactly the same situation here. Upon this motion we have no right to consider the merits of the appeal, but we are bound to presume, for the purposes of such motion, that, upon the merits of the appeal, appellants would succeed. To determine whether or not the question before us is but a moot question, let us ask what the situation would be if, upon the merits of this appeal, we should find that the trial court erred in refusing the injunctions. If we should so hold, then, just as in the second Wisconsin case, these taxpayers would have a right to seek, either through an amendment of their complaint in the action now pending, or else through an independent action, to recover from the bridge company the difference between what the county has paid it and the amount to which it was equitably entitled, if anything.
It has been suggested that it would be impossible to undo what the bridge company has done. That is certainly true, and no one would contend that this or the trial court could now, by any equitable relief whatever, undo what has been done. But this...
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