Coon v. Sommercamp

• Decision Date: 15 February 1915
• Parties: HARRY M. COON et al., Respondents, v. JAMES A. SOMMERCAMP, Treasurer and Ex-officio Tax Collector of Washington County, State of Idaho, Appellant
• Court: Idaho Supreme Court

146 P. 728

26 Idaho 776

HARRY M. COON et al., Respondents, v. JAMES A. SOMMERCAMP, Treasurer and Ex-officio Tax Collector of Washington County, State of Idaho, Appellant

Supreme Court of Idaho

February 15, 1915

POLITICAL CORPORATION-STATE, COUNTY, MUNICIPAL OFFICERS-PROSECUTION OR DEFENSE OF SUITS IN OFFICIAL CAPACITY-UNDERTAKINGS ON APPEAL-TRANSCRIPTS SERVED ON ADVERSE PARTY-PROOF OF SERVICE OF TRANSCRIPT-CLERK'S CERTIFICATE INSUFFICIENT-MOTION TO DISMISS APPEAL SUSTAINED.

1. Sec 4935, Rev. Codes, which provides that "In any civil action or proceeding wherein the state or the people of the state, is a party plaintiff, or any state officer, in his official capacity, or on behalf of the state, or any county or city, is a party plaintiff or defendant, no bond, written undertaking, or security can be required of the state, or the people thereof, or any officer thereof, or of any county, or city; but on complying with the other provisions of this code, the state, or the people thereof, or any state officer acting in his official capacity, or any county or city, have the same rights, remedies and benefits as if the bond, undertaking or security were given and approved as required by this code," applies to county treasurers and ex-officio tax collectors in prosecuting an action for and on behalf of a rural high school district; said rural high school district being a political corporation of the state.

2. Whenever an action is brought by or against state, county or municipal officers, and such officers prosecute or defend in said action in their official capacity, acting for or defending the rights of the state, county or municipality, or any legal subdivision thereof, they are permitted to so act without furnishing costs or undertakings on appeal. (Sec 4935, supra.)

3. In all cases where an appeal is perfected, a transcript of the record must be served upon the adverse party and filed in this court within sixty days after the appeal is perfected unless an extension of time be granted; otherwise the appeal will be dismissed.

4. Where it appears from the record on appeal that the transcript was not served upon the adverse party and a motion is made in this court to dismiss the appeal for that reason, and where an affidavit by counsel for appellant, attempting to show service, but uncertain and indefinite in its terms, is filed subsequent to the hearing of the motion to dismiss the appeal, it will not be considered by the court as sufficient proof of service of the transcript and the motion to dismiss will be allowed.

5. Upon an appeal from a judgment, the clerk is required to furnish the court with a copy of the notice of appeal, the judgment-roll and any bill of exceptions or reporter's transcript. Where the clerk certifies that the transcript of the proceedings in the trial court "contains all the papers specified in the praecipe filed with me," said certificate is insufficient.

APPEAL from the District Court of the Seventh Judicial District for Washington County. Hon. Ed. L. Bryan, Judge.

Action to enjoin collection of school tax. Motion to dismiss appeal. Sustained.

Appeal dismissed. Costs awarded to respondents.

J. H. Peterson, Attorney General, and T. C. Coffin, Assistant, James Harris and Devaney & Carter, for Appellant.

The law in California with regard to the filing of a bond by a public officer is in conflict, but we find another and apparently better rule established in Washington, and a consistent line of decisions follows it. The rule there announced in the case of Corbett v. Civil Service Commission of the City of Seattle, 33 Wash. 190, 73 P. 1116, is that the section of the code dispensing with the filing of a bond applies to all cases in which an officer of a legal subdivision of the government is acting in his official capacity. That the appellant in the case at bar is so acting is sufficiently shown for the purposes of this case by the fact that he is sued in that capacity. The respondent is endeavoring on this motion to take advantage of mere technicalities in the procedure of taking the appeal, and those who rely upon technicalities must themselves observe them. The twenty days prescribed by sec. 4809, Rev. Codes, for objecting to the undertaking had expired, and the motion comes too late under the provisions of this section. (King v. Seebeck, 20 Idaho 223, 118 P. 292; Martin v. Wilson, 24 Idaho 353, 134 P. 532. See, also, Kohn v. Davidson, 23 La. Ann. 467; Arrington v. Smith, 26 N.C. 59; Saylor v. Marx, 56 Tex. 90; Seattle & M. Ry. Co. v. Johnson, 7 Wash. 97, 34 P. 567; Roberts v. Shelton S.W. R. Co., 21 Wash. 427, 58 P. 576.)

The signing of a stipulation allowing the respondent more time in which to file his brief constitutes an appearance in the supreme court which waives technical defects in the appeal and in the bond. (National Safe & Lock Co. v. People, 50 Ill.App. 336.)

Wood & Driscoll and Varian & Norris, for Respondents.

Sec. 1058 of California Code of Civil Procedure is identical, so far as this question is concerned, with our sec. 4935, Rev. Codes.

The supreme court of California in Lamberson v. Jefferds, 116 Cal. 492, 48 P. 485, held that it would be applied to such official in all cases where it appeared that the county was really the party in interest. But in an earlier case it was said: "A county officer is not exempted from filing an undertaking on appeal by virtue of the provisions of sec. 1058, Code Civil Procedure." (Von Schmidt v. Widber, County Treasurer, 3 Cal. Unrep. 835, 32 P. 532.)

The county treasurer is acting as agent for the school district and not for the county; the county is not the real party in interest, and in fact, has no interest therein. As county treasurer, where the county is not the real party in interest, he is not excused from filing bond. Much less is he excused when he is acting in the interest of and agent for the school district, for the statute makes no mention of them. (Mitchell v. Board of Education, 137 Cal. 372, 70 P. 180.) The Washington rule is identical with that of California and based on California cases, and the question in this case remains as stated, Is the county here the real party in interest? If not, the bond must be filed.

The record shows the appeal perfected in this case on June 5, 1914, and the transcript was filed in this court on August 29, 1914, eighty-five days later. The record shows no extension of time. It affirmatively appears from the record that there is no reporter's transcript, and but 32 pages of clerk's transcript. It does not appear that appellant filed his praecipe for a transcript with the clerk within five days, that he paid the fees, nor does any other matter appear which would excuse the delay, or show that the appellant had proceeded with all the diligence in his power. (First National Bank of American Falls v. Shaw, 24 Idaho 134, 132 P. 802.)

Chapter 17, Sess. Laws 1911, sec. 3, p. 376, provides that the appellant shall file with the transcript "appropriate affidavit or admission of service." Rule 23 of this court contains substantially the same provision. The record in this case shows absolutely no compliance with the requirement. Under the rule in Strand v. Crooked River Min. etc. Co., 23 Idaho 577-580, 131 P. 5, the omission is jurisdictional, and the appeal must be dismissed.

BUDGE, J. Sullivan, C. J., and Morgan, J., concur.

OPINION

BUDGE, J.

Rural high school district No. 1 of Washington county was composed of school districts Nos. 5 and 8. On the 18th day of January, 1913, the board of county commissioners of Washington county, ordered the segregation of school district No. 5 from rural high school district No. 1.

After said segregation, the board of directors of school district No. 1 levied a tax upon all property situated therein, as it existed prior to the action of the board of county commissioners, segregating the same, which levy was duly reported and certified to the county commissioners, and thereafter entered upon the assessment-roll by the county assessor, who, subsequent thereto, turned over his assessment-rolls to the appellant herein, as county treasurer and ex-officio tax collector, for collection. This action was instituted to restrain the appellant as ex-officio tax collector from collecting said tax. A general demurrer to respondent's complaint was filed by appellant and thereafter argued and by the trial court overruled. To the complaint of respondent, the appellant filed an answer, to which answer, respondent filed a motion to strike a portion of the same, which motion was sustained by the trial court, whereupon judgment was taken by the respondent. This appeal is from the judgment.

On October 17, 1914, attorneys for respondent filed a notice of motion and motion to dismiss the appeal herein, upon the following grounds, to wit:

First, that the undertaking on appeal was not filed within five days after the service of the notice of appeal, upon the attorneys for the respondent, as required under sec. 4808, Rev. Codes.

Second, upon the ground that the transcript was not accompanied with a certificate of the clerk or of the attorneys, that an undertaking on appeal in due form had been properly filed.

Third, that the transcript was not filed in the supreme court within the statutory time.

Fourth, that proof of service of the transcript was not filed.

Fifth, that the certificate of the clerk to the transcript is insufficient.

The first ground of the motion to dismiss the appeal is based upon the failure of appellant to file an appeal bond or undertaking within the statutory time, or to furnish any other security that he would pay such damages or costs, as might be awarded against him, upon the dismissal of the appeal.

Sec. 4935, Rev. Codes,...