Coler v. Coppin
| Decision Date | 17 April 1901 |
| Citation | 85 N.W. 988,10 N.D. 86 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Richland Count; Winchester, J.
Action by William N. Coler and others against Alfred Coppin and others for a writ of mandamus to compel the payment of a judgment held by claimants against defendants as directors of Dwight and Ibsen school districts. From a judgment granting the writ, defendants appeal.
Affirmed.
W. E Purcell, for appellants.
This court is bound to notice that this case has connection with and grows out of one formerly decided by this court. 3 N.D 249. All questions involved in this proceeding have been adjudicated against the plaintiff by this court. The District Court has acted upon such adjudication and the parties themselves have adopted and acted upon it, and we are all estopped from reinvestigating it. 1 Herman on Estoppel, 115; Bank v. Gilman, 3 S.D. 171; Ben v Shoemaker, 74 N.W. 249; Kramer v. Kohn, 76 N.W 937; Martin v. Hunters, 1 Wheat. 355. The records on the former appeal in this action may be looked into for the purpose of ascertaining what facts and questions were before the court. Bank v. Gilman, 3 S.D. 171; McKinely v. Tuttle, 42 Cal. 571; Little v. McAdams, 38 Mo.App. 187; Donner v. Palmer, 51 Cal. 629; Subd. 14, § 5713d, Rev. Codes. The Supreme Court has no power to review its former conclusions in the same case. Dyer v. Ambleton, 19 S.W. 574; Brown v. Crown, 3 Ky. 451; Burwell v. Bergwyn, 105 N.C. 507; Gaines v. Latta, 148 U.S. 228; Baxter v. Brooks, 29 Ark. 173; Martin v. Laffland, 18 Miss. 317. Such questions are only reviewable on rehearing, and a court has no power to review them on a second appeal. Reid v. West, 70 Ill. 479; Bell v. Woodward, 47 N.H. 539; Wyndom v. Cobb, 74 Ia. 709; McDonald v. McKinnon, 104 Mich. 428.
John L. Pyle, and McCumber, Bogart & Forbes, for respondent.
There is no question of the power of the legislature to impose upon a new municipality, which included all or a portion of the territory of the old municipality, liable for the debts of the old corporation, where the property of the latter is turned over to and received by the former under the law. Mt. Pleasant v. Beckwith, 100 U.S. 514; 1 Dillon's Mun. Corp. 63; State v. Lake City, 25 Minn. 404; City of Winona v. School District No. 82, 40 Minn. 13, 41 N.W. 539; DeMattos v. City, 29 P. 933; Laramie County v. Albany County, 92 U.S. 307; Schriber v. Langdale, 29 N.W. 547; Knight v. Ashland, 21 N.W. 65, 70; State v. Clevenger, 43 N.W. 243, 20 Am. St. Rep. 677 and note. Coler School District was absorbed in the Coler School Township under the provisions of chapter 44, Laws 1883, and by section 144 the township assumed and became liable for the district debt.
FISK, District Judge. MORGAN, J., being disqualified, Judge Fisk of the First Judicial District sat by request.
This is an appeal from a judgment rendered by the District Court of Richland county directing the issuance of a peremptory writ of mandamus compelling the officers of Dwight and Ibsen school districts to levy a tax upon the property of the districts to pay their pro rata share of certain judgments recovered against Dwight school township. This litigation has been before this court twice before, and for a full statement of the facts see opinion of Corliss, J., in 3 N.D. 249, 55 N.W. 587, 28 L. R. A. 649, and 7 N.D. 418, 75 N.W. 795. In the first appeal it was strenuously insisted by counsel for Dwight school township that there was no liability, upon the ground, among others, that, as the indebtedness to collect for which an action was commenced was incurred by school district No. 22, Dwight school township, which was organized under Chap. 44 of the Laws of 1883, and which included within its boundaries the old district No. 22, and certain other districts, did not become liable until there had been a settlement between the several old districts included within such school township. He contended that until the old districts adjusted their differences between themselves and the new school township, the new school township organization was not completed, and hence that no liability attached. In other words, that settlement between the several old districts within the school township created by the law of 1883 was a condition precedent to the absolute liability of the newly-created school township. This court, upon that appeal, overruled this contention, holding that such settlement was not a condition precedent to the organization or liability of the school township, and affirmed the judgment of the District Court holding the township liable. See 3 N.D. 249, 55 N.W. 587, 28 L. R. A. 649. Subsequently, and upon application of defendants' counsel, this court attempted to modify said judgment by directing that a provision be inserted therein as follows "This judgment is to be enforced subject to the provisions of sections 136-141, chapter 44, Laws 1883, the debt on which it is rendered being a debt subject to equalization as therein provided." This modification was directed under the belief that the judgment creditors could not compel the levy of a tax by the defendants until such creditors had secured an equalization of taxes under the statute. This was clearly erroneous, as these sections have no relevancy to the question at all, and the attempted modification is without any force or effect whatever. As said by Corliss, J., in 7 N.D. 418 at 421, 75 N.W. 795 at 796: "The sections of the statute subject to which we said the judgment must be enforced have no relevancy whatever to the question of the enforcement of such judgment; and the clause inserted in our judgment, was mere idle surplusage." Under the provisions of section 144 of said chapter 44, Laws 1883, all debts of the old districts were assumed by and became the debts of the new school township, and all judgments recovered against the latter upon such debts should be enforced the same as any other judgments against such townships. It follows, therefore, that the plaintiffs have an unqualified judgment against Dwight school township which they are entitled to collect in the usual manner. The entry of such judgment was a final adjudication as to the liability of such school township, and upon affirmance by this court all controversy as to such liability was thereby forever foreclosed. But, even if this were not so, we would unhesitatingly approve the reasoning, and reassert the doctrine enunciated in the first opinion of this court...
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