Coolsaet v. City of Veblen
| Decision Date | 20 September 1929 |
| Docket Number | 6951 |
| Citation | 226 N.W. 726,55 S.D. 485 |
| Parties | HECTOR COOLSAET, Remi Coolsaet and Peter Drees, dba Coolsaet Bros. & Drees, Respondents, v. CITY OF VEBLEN, Appellant. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Marshall County, SD
Otto Kaas and Harold W. King, both of Britton, SD
Attorney for Appellant.
Buell F. Jones, Britton, SD
James H. Hall, Marshall, Minn.
Attorneys for Respondents.
Opinion Filed Sep 20, 1929
The question is whether appellant, city of Veblen, is estopped to maintain its appeal to this court, the dismissal of which is demanded by respondents’ motion. Facts sufficient for the purpose of this discussion may be thus stated:
The appellant, city of Veblen, entered into a contract with respondents on June 8, 1921, according to which they were to construct an extension of water mains for the contract price of $7,910.22 to be paid in cash or in valid assessment certificates against the property benefited by the improvement. After completion and acceptance of the work, the city issued to respondents the assessment certificates, but they proved to be null and void by reason of procedural defects, and the failure of the proper officer to certify a copy of the assessment roll, describing the properties assessed, to the county auditor, on account whereof the special assessment was not spread upon the tax books and made a lien against the said properties. After presentment and nonpayment of their claim against the city for the amount due under the contract, as aforesaid, respondents commenced an action in the circuit court of Marshall county against the city. Therein the city appeared by Mr. C. A. Sasse, an attorney of Veblen, and Messrs. Waddel & Daugherty, attorneys of Webster, S.D. Demurrer to plaintiffs’ complaint was interposed and overruled, and the city joined issue. Testimony was taken before a referee, and at trial on June 17, 1928, the same was presented with additional proof to the court. At the trial the mayor and other officials of the city were present, as well as the attorneys above mentioned. At the conclusion of the plaintiffs’ case, the attorneys for the defendant city requested a recess, and a conference with the attorneys for the plaintiffs, who are the respondents in this appeal, was had. It was freely admitted by the attorneys for the city that, in their opinion, the city was liable for the full amount of the plaintiffs’ claim, which then amounted to $11,703.81, and, by them, it was proposed that if the plaintiffs would accept a judgment for $10,563.44 – a discount of $1,140.37 – such judgment might be entered by agreement. The amount of the compromise was arrived at by a reduction of the rate of interest computable on plaintiffs’ demand. Accordingly, findings of fact and judgment were drafted, and, when presented to the trial judge, it was to the court made clear that an agreement has been reached as above stated. Consistent with the agreement of the attorneys for both parties, the judgment provided for a recovery on the part of plaintiffs of $10,563.44 and also purported to authorize the defendant city to reassess the properties affected by the local improvement, and that it be subrogated to any rights of plaintiffs under certificates of such assessment.
Although the judgment in this case purports to be based upon trial and findings of fact and conclusions of law, and makes no reference to the consent or agreement of the parties, the evidence before us on this motion establishes that it was on account of the agreement of the attorneys, expressed in open court, that the trial judge was led to sign the findings and decree, and it is also made to appear that, save for the oral stipulation, the court would have felt obliged under the evidence to have entered judgment in favor of plaintiffs for the total amount demanded in their complaint, and would not have felt justified in entering a judgment which might purport to authorize reassessment.
The defendant city has taken this appeal. The respondents, who were the plaintiffs below, move to dismiss, and claim that the appellant is estopped or barred from maintaining the appeal on account of the facts with respect to the entry of the judgment by consent or in compromise, as above shown.
It is a general rule that a judgment entered by consent may not be complained of on appeal by the parties to it, and that an appeal therefrom will be dismissed on motion. Hibernia, etc., Society v. Waymire, 152 Cal. 286, 92 P. 645, 646; Clemens v. Gregg, 34 Cal. App. 245, 167 P. 294, 296; Corby v. Abbott, 28 Mont. 523, 73 P. 120; Schoren v. Schoren, 110 Ore. 272, 214 P. 885, 222 P. 1096, 1097; Interior Securities Co. v. Campbell, 55 Mont. 459, 178 P. 582, 584.
But this rule proceeds from the premise that such a judgment is in the nature of a contract. If the appellant in this case is estopped to maintain this appeal, it is on account of its contract or of a proceeding of contractual nature pursued by its attorneys in the court below. To say whether the appellant, a municipality, is estopped to take this appeal, is to declare whether it has been obligated to the stipulation or agreement of its attorneys for the entry of the judgment by consent. We are satisfied that: “A municipal corporation under proper circumstances may consent to a judgment against itself.” 3 Bancroft’s Code Prac. § 1787, p. 2341. And it may be stated as a general rule that:
“Municipal corporations are bound by the acts of their attorneys precisely the same as private corporations or individuals would be, and in the absence of fraud or collusion on their part attorneys have power to bind their clients, including municipal corporations, by consenting to judgments or decrees.”
Salt Lake City v. Salt Lake Inv. Co., 43 Utah 181, 134 P. 603, 607.
Yet these rules must be qualified to the effect that city officials or representatives cannot consent to a judgment upon a claim which the...
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