Cowles v. Indep. Sch. Dist. of Rome

• Decision Date: 15 November 1927
• Docket Number: No. 38148.,38148.
• Citation: 216 N.W. 83,204 Iowa 689
• Parties: COWLES v. INDEPENDENT SCHOOL DIST. OF ROME.
• Court: Iowa Supreme Court

204 Iowa 689

216 N.W. 83

COWLES

v.INDEPENDENT SCHOOL DIST. OF ROME.

No. 38148.

Supreme Court of Iowa.

Nov. 15, 1927.

Appeal from District Court, Henry County; Oscar Hale, Judge.

Action to recover for legal services rendered to defendant School District. Judgment for defendant. Plaintiff appeals. Reversed.La Monte Cowles and C. M. Fischer, both of Burlington, for appellant.

J. V. Gray, of Mt. Pleasant, for appellee.

MORLING, J.

The questions presented in the briefs are whether the plaintiff was employed or his employment ratified by a board of directors so constituted as to legally authorize them thereto, and whether the services rendered were services rendered in behalf of the school board or in defense of the individual rights of the teacher and of two ostensible members of the board, whose title to position and office was attacked. Defendant's contention on the first point is that the action of the school board ratifying plaintiff's employment was at a meeting at which there were only two legally qualified members present and the two other purported members were not legally such; that there was no quorum and no power to act. With respect to the latter point, the claim is that the employment was to defend the rights of a teacher and the services rendered were in defense of her contract and of the title of the two contested members to their office.

There is no conflict in the evidence. Plaintiff was employed September 8, 1914, by Baston, the president of the school board, and O'Laughlin, a director. Their title to their offices is not disputed. They informed plaintiff (he says):

“That a controversy had arisen over the primary teacher, and that there was an action being brought to restrain one Miss Talbot from teaching, and that the hearing was set at Wapello before Judge Hale, and wanted to know if I could go up with them. I asked them at the time if this action had been approved by the board, and they reported that it had; I didn't see the record for a long time afterward.”

The minutes of the school board do not show prior employment, but in the record of the proceedings of September 9, 1914, is the adoption of a motion accepting “the action of the president of employing attorney Cowles to defend Miss Selma E. Talbot in the matter of injunction proceedings,” and “that all expenses in defending the same be borne by the district.” The board on July 27, 1914, at a time when it is admitted to have been legally constituted, voted to employ Miss Jennie Dicus as primary teacher over director O'Laughlin's opposition. On August 3, 1914, O'Laughlin unsuccessfully moved to rescind her employment. On August 10, 1914, the minutes record that director “John Sammons asked the president to accept his resignation from the board of directors. The president called for nominations to fill vacancy made by the resignation of John Sammons.” Nominations were made, but a tie prevented election. At a meeting held August 27, 1914, the minutes show: Present: John Sammons; J. J. O'Laughlin; J. M. Baston. Absent: William Wehrle; F. D. Swailes. “* * * The president called for nominations to fill vacancy of John Sammons.” Motion to prepare ballots “to fill vacancy of John Sammons” was carried. C. O'Grady was nominated, and, according to the minutes, “received two votes” or a majority of the quorum, and was elected to fill vacancy of John Sammons, and was duly qualified by the president. Moved by O'Laughlin and seconded by O'Grady that the “resignation of F. D. Swailes be accepted.” R. W. Swailes was nominated “to fill vacancy of F. D. Swailes. R. W. Swailes received the majority of the votes of the quorum, electing him to fill the vacancy occasioned by the resignation of F. D. Swailes and duly qualified by the president.” Motion was then made and carried “that the board rescind their action of employing Miss Jennie Dicus as primary teacher and to hire a more efficient teacher for the primary room.”

The record shows that from that date O'Grady and R. W. Swailes continuously (though sometimes absent) acted as members of the board and actively participated in the meetings as directors. According to the minutes, the board from that time on was constituted of the three previously elected directors, Baston, O'Laughlin, and Wehrle, together with O'Grady and R. W. Swailes. They conducted the regular business of the district, including the leasing of property, the purchase of building material, the fitting of leased property, employing teachers and janitor, fixing salaries, executing teachers' contracts. At the meeting of September 1, 1914, it is recorded in the minutes, “Miss Selma Talbot made verbal application before the board for the primary teacher for 2 1/2 months at a salary of $50 per month,” and motions employing her accordingly and directing that contract to be drawn up and signed were carried. At the meeting of September 9, 1914, at which Swailes, O'Laughlin, O'Grady, and Baston were present, Wehrle absent, and at which the action accepting the employment of plaintiff, as above set forth, was taken, Miss Talbot, by request of the president, applied for the remaining 6 1/2 months of the school year. Motion to accept at a salary of not less than $50 a month was carried by the vote of Swailes, Baston, O'Laughlin, and O'Grady, Wehrle absent. Contracts were made with Miss Talbot, and she entered on the performance of her duties.

On September 7, 1914, Wehrle filed in the district court a petition against J. N. Hileman, the school district treasurer, and Miss Talbot, alleging, in substance, that Jennie Dicus was the duly elected teacher, and that Selma Talbot was not, praying judgment accordingly, and asking temporary injunction against the treasurer from paying Miss Talbot and against Miss Talbot from teaching. A temporary injunction against the treasurer from paying Miss Talbot was entered September 12, reserving the determination of her rights to final hearing. An amendment to the Wehrle petition was filed, setting up the pendency of actions in court (presently noted) to determine the right of O'Grady and R. W. Swailes to the office of school directors. On October 7, 1914, an interlocutory decree was entered reciting the pendency of proceedings in quo warranto (about to be noted), continuing the temporary injunction, directing that the hearing on the right to a permanent injunction or any other matters involved in the action be had at the determination of the quo warranto proceedings, and that the whole matter in relation to Miss Talbot's right to teach be determined at the time of the final hearing and after the disposition of the proceedings in quo warranto. We go back to September 24, 1914, on which petitions in quo warranto in the name of the state, on the relation of Wehrle (the director) against O'Grady and R. W. Swailes, were filed, demanding their ouster. On the same date petition in quo warranto in the name of the state, on the relation of Jennie M. Dicus and Wehrle, was filed against Selma Talbot, asking that she be ousted. On the same date a petition was filed by Jennie M. Dicus against Baston, president of the school board, praying for a peremptory writ of mandamus to execute contract for plaintiff's employment as teacher. In each of these cases the plaintiff here appeared and pleaded for the respective defendants. The cases were tried and judgments entered in favor of the plaintiffs in quo warranto against O'Grady and Swailes October 20th, and in favor of plaintiff and against defendant in mandamus December 5, 1914. It is for services in these cases that plaintiff seeks to recover.

Plaintiff testified that his different items of services all arose out of the attempted employment of Miss Talbot in place of Miss Dicus; that, in arguing the injunction case, “the matter had come up as to the qualification of Swailes and O'Grady as directors, and actions had been brought to oust them.” He testified:

“I don't think it is possible for me to tell what the fees were for in the different cases. When you have three or four cases all relating to the same state of facts you give time to them but make no special division as to the time. * * * This whole matter was interlocked together; it was all a question as to Miss Talbot's right to teach, depending upon the contract with Miss Dicus, and her contract depended on whether the board that was elected had a right to rescind it, and that was determined in the mandamus case; they are all interlocked; it is all one proceeding.”

He also says:

That the charges that were made after the court held that O'Grady and Swailes were not officers “were necessary charges in protecting the interest of my clients in the particular lawsuits that we already had pending, like petition for new trial. * * * The school district was the only client I had.

“Q. You examined the records to see whether the school board was properly elected? A. In my judgment they were. It was determined by the court that they were not, but courts sometimes make mistakes. We did not appeal it to the Supreme Court because it would have been a moot question by the time we got there.”

The resigning directors appear not to have been present or to have participated in any of the proceedings of the board after their successors were appointed.

[1] In the quo warranto cases the court decided that O'Grady and R. W. Swailes were guilty of unlawfully holding and exercising the offices of school directors and ousted them therefrom. In the mandamus case it was held that Miss Dicus was entitled to teach. Though plaintiff was attorney in those cases, it is not, and we think cannot be, claimed that the judgments are res adjudicata as to him. 34 C. J. 999.

According to the minutes of the proceedings of the board of directors on July 27, 1914, at which all of the members were present, “evidence against Miss Jennie Dicus as primary teacher, were filed with the president.” She apparently was the previous primary teacher. This so-called...