Coyle v. Richter

Citation234 N.W. 906,203 Wis. 590
PartiesCOYLE v. RICHTER ET AL.
Decision Date10 February 1931
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

Appeal from a portion of a judgment of the Circuit Court for Chippewa County; James Wickham, Circuit Judge.

Action by Owen Coyle against William C. Richter and others. From the judgment plaintiff appeals.--[By Editorial Staff.]

Reversed and remanded, with instructions.

On November 1, 1928, the city of Chippewa Falls, through its officers, who are defendants in this action, entered into a contract with Holtz Bros. Electric Company for installing a traffic control system of stop and go lights. The contract was let without submission to bids. The work had been completed. A taxpayer's action was begun to restrain payment under that contract. That action was tried, and on May 11, 1929, the circuit court held the contract illegal and void, and judgment was entered accordingly. June 11, 1929, the city by its officers, the defendants here, passed a resolution ordering the preparation of plans and specifications and directing the board of public works to advertise for bids and let the contract for the installation of a traffic control system of electric stop and go lights. There was no compliance with section 62.15, Stats., which provides the steps to be taken in letting contracts where patented material or process is to be used. The use of a patented device was necessary in this contract.

The original complaint was served July 3, 1929. After the commencement of the action Holtz Bros. Electric Company made its bid, which was the only bid received; the contract for the construction let upon this bid was dated July 24, 1929; payment was made July 30, 1929; a supplemental complaint was served September 27, 1929, demanding judgment restraining the defendants from doing certain acts and requiring them to pay into the city treasury the sum so illegally paid out by them to Holtz Bros. Electric Company, with interest from July 30, 1929, and certain other relief.

The case was tried without making the city a party defendant, and at the conclusion the court made its findings of fact and conclusions of law, in which it held that because of the failure to join either the city or Holtz Bros. as parties to this action no judgment for the recovery of the contract price can be rendered herein in favor of the city, and, while restraining the defendants from proceeding further with relation to contracts for the construction of curbs and gutters, ordered judgment “that the defendants be not required to refund to the city treasury the amount of said contract price heretofore paid,” and gave the plaintiff judgment for costs and disbursements.W. H. Stafford and Harold E. Stafford, both of Chippewa Falls, for appellant.

P. J. Murphy, of Chippewa Falls (Alexander Wiley, of Chippewa Falls, of counsel), for respondents.

FAIRCHILD, J.

[1][2][3][4] The plaintiff's failure to make the city a party to this action created the difficulty which resulted in the ruling of the trial court of which appellant complains. That a cause of action exists in favor of the municipality seems clear. The facts in this case bring it within the rule laid down in Neacy v. Drew, 176 Wis. 348, 187 N. W. 218. Taxpayers may bring suits to recover property or money belonging to the municipality or to enforce any cause of action belonging to the municipality. This class of actions is for the public benefit. They are favored because of the beneficent public purpose usually sought to be served by bringing them. However, in order to have a complete determination of the issues involved, the municipality must be a party. It is understood from the circumstances that the city of Chippewa Falls, acting through its officers, the defendants, would not bring the action or join as plaintiffs, but this does not excuse the plaintiff from joining the city as a defendant. Section 260.19, Stats.: “The court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, or any persons not parties to the action have such interests in the subject matter of the controversy as require them to be made parties for their due protection, the court shall order them to be brought in. * * *”

In McDougald v. New Richmond R. M. Co., 125 Wis. 121, 103 N. W. 244, 247, the court said: “The court is not bound to wait for an objection that necessary parties are not before the court before acting in that regard. It may do so upon its own motion and may entertain an objection in regard to the matter at any time while jurisdiction to hear the case remains.”

This case quoted with approval from Mahr v. Norwich U. F. Ins. Soc., 127 N. Y. 452, 28 N. E. 391, 392, as follows: “While the statute does not in terms...

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9 cases
  • Feen v. Ray
    • United States
    • Illinois Supreme Court
    • December 20, 1985
    ...because recovery runs in favor of them. (85 Ill.2d 458, 472, 55 Ill.Dec. 535, 426 N.E.2d 860.) See, e.g., Coyle v. Richter (1931), 203 Wis. 590, 592, 234 N.W. 906, 907 (a municipality must be a party where a taxpayer seeks to recover money or property on its behalf); see also Price v. Gurne......
  • City of Appleton v. Town of Menasha
    • United States
    • Wisconsin Supreme Court
    • February 19, 1988
    ...to bring the action. The individual brings the action because the municipality fails to exercise its own right to sue. Coyle v. Richter, 203 Wis. 590, 234 N.W. 906 (1931). When a taxpayer brings an action on behalf of the municipality, that is, a derivative action, the taxpayer's rights in ......
  • Elview Const. Co., Inc. v. North Scott Community School Dist.
    • United States
    • Iowa Supreme Court
    • August 21, 1985
    ...31 A.2d 543, 546 (1943) (recovery against borough council members for illegal expenditures made to chief of police); Coyle v. Richter, 203 Wis. 590, 234 N.W. 906, 907 (1931) (recovery from officials of money illegally paid under contracts let without submission to competitive However, McQui......
  • Stuart v. City of Neenah
    • United States
    • Wisconsin Supreme Court
    • June 5, 1934
    ...Wooden Ware Co. v. Winter, 159 Wis. 437, 444, 150 N. W. 526;Matson v. Caledonia, 200 Wis. 43, 46, 227 N. W. 298;Coyle v. Richter, 203 Wis. 590, 592, 234 N. W. 906), there is no basis for such an action if it does not appear that the municipality is about to sustain any loss or be deprived o......
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