Foss v. Spitznagel

• Decision Date: 23 July 1959
• Docket Number: No. 9762,9762
• Citation: 97 N.W.2d 856,77 S.D. 633
• Parties: Henry FOSS, Plaintiff and Appellant, v. Harold SPITZNAGEL and Fay Wheeldon, Bert T. Yeager and John Browning, as Mayor and Commissioners of the City of Sioux Falls, a Municipal Corporation, and as Individuals, Defendants and Respondents.
• Court: South Dakota Supreme Court

Page 856

97 N.W.2d 856

77 S.D. 633

Henry FOSS, Plaintiff and Appellant, v. Harold SPITZNAGEL and Fay Wheeldon, Bert T. Yeager and John Browning, as Mayor and Commissioners of the City of Sioux Falls, a Municipal Corporation and as Individuals, Defendants and Respondents.

No. 9762.

Supreme Court of South Dakota.

July 23, 1959.

James O. Berdahl, Sioux Falls, for plaintiff and appellant.

Stordahl, May & Boe, Sioux Falls, for Harold Spitznagel.

Robert S. Golden, John E. Burke, Sioux Falls, for Fay Wheeldon, Bert T. Yeager, and John Browning, as Mayor and Commissioners of the City of Sioux Falls.

Claude A. Hamilton and Thomas J. Barron, Sioux Falls, for Fay Wheeldon, Bert T. Yeager, and John Browning, Individually.

BIEGELMEIER, Judge.

The amended complaint in this action states that the plaintiff was a taxpayer of Sioux Falls, South Dakota; that he brought the action for and on behalf of himself and all other taxpayers; that three of the defendants were the city commissioners thereof and as such had control of a fund known as the 'Auditorium Building Fund', which fund was created by Ch. 488 of the South Dakota Session Laws of 1953; that by a resolution of May 9, 1955, said defendants employed the defendant Harold Spitznagel and Associates (which defendant we will refer to herein as Spitznagel) as architects for a prospective new civic arena or auditorium; that by city auditor's warrant the commissioners on March 5, 1957, paid defendant Spitznagel $10,859.32 for such architect's services out of this Auditorium Building Fund; that at an election on June 12, 1956, the question of issuing bonds of $2,500,000 for such a building was submitted to the voters which failed to receive the required 60% affirmative vote; that the employment of defendant Spitznagel was made without first advertising for bids for such services; that this payment was illegal and wholly unauthorized by law; that as a result of said employment without advertising for competitive bids thereon, the plaintiff and all the taxpayers in said city of Sioux Falls similarly situated have been damaged in the sum of $10,859.32 for which amount plaintiff asked judgment against all the defendants. The defendants moved to dismiss the amended complaint for the reason that it failed 'to state a claim upon which relief can be granted'. SDC 33.1002. At the hearing on this motion the trial court entered one order of dismissal dismissing plaintiff's amended complaint on the merits as against the defendant Spitznagel and a separate order of dismissal dismissing the amended complaint upon its merits and with prejudice as against the defendant commissioners; these orders were dated April 10, 1958. The settled record shows that on April 30, 1958, the trial court also entered a Judgment which dismissed the amended complaint on its merits as against all defendants and awarded costs to them. On October 29, 1958, the plaintiff served and filed a notice of appeal to this court from these two orders and the judgment. We have set out this record in detail for the reason that defendants have moved to dismiss plaintiff's appeal, claiming that the notice of appeal was not served or filed within sixty days after written notice of the filing of these orders.

SDC Supp. 33.0702 states that an appeal must be taken to the Supreme Court within sixty days after written notice of the filing of the order shall have been given to the party appealing and every other appeal allowed must be taken within six months after the judgment shall be signed, attested, filed and written notice of entry thereof shall have been given to the adverse party. SDC 33.1702 provides in part: 'An order becomes complete and effective as such when reduced to writing, signed by the Court or Judge, attested by the clerk and filed in his office.' A careful examination of the settled record shows that the order of dismissal as to the defendant Spitznagel was signed by the judge, attested by the clerk and filed, but it does not show that the notice of entry thereof was ever served on plaintiff's attorneys so that the plaintiff's time for appeal had not expired from that order when he served his notice of appeal. The settled record further shows that while the notice of entry of the order of dismissal as to the defendant commissioners was served on plaintiff's attorney, this order was signed by the judge but not attested by the clerk. An order not having been attested by the clerk is not effective as an order. Stephens v. Faus, 20 S.D. 367, 106 N.W. 56, 58. Section 317 of the Revised Code of Civil Procedure of 1903, under which that case was decided, was the same as SDC 33.1702, supra, except the clause 'when reduced to writing' was 'made in writing' and this court said after referring to this section 317: 'It affirmatively appears from the appellant's abstract that the order denying his motion for a new trial was not attested when this appeal was taken. No such order then existed. An appeal cannot lie from an order which does not exist, * * *.' Such has been the holding of this court in many succeeding cases, including Brady v. Cooper, 46 S.D. 419, 193 N.W. 246, where the wording of Sec. 2561, Rev.Code 1919 was the same as SDC 33.1702. So this order did not exist and notice of entry of the nonexisting order was ineffective. The appellant therefore has timely appealed from the one order and from the judgment. In Northwestern Engineering Co. v. Ellerman, 69 S.D. 397, 10 N.W.2d 879, this court held that the order sustaining the motion to dismiss the action with prejudice to another action and that the defendants have judgment thereon with leave to the plaintiff to amend its amended complaint within twenty days was not a judgment but an intermediate order under subdivision (6) of SDC 33.0701. As the present appeal includes an appeal from the Judgment we are permitted under SDC 33.0710 to review any order, ruling or determination of the trial court whether it is made before or after judgment involving the merits and necessarily affecting the judgment and appearing upon the record and thus review the one effective order and judgment which reach the same result, the dismissal of the action. The same question being presented, the appeal is not bad for duplicity. City of Sioux Falls v. Mansors, 41 S.D. 105, 168 N.W. 751; Grieves v. Danaher, 60 S.D. 120, 243 N.W. 916. The motion to dismiss the plaintiff's appeal is therefore denied. We thus reach the merits of this appeal.

Plaintiff contends that the contract employing defendant Spitznagel is embraced within the provisions of Ch. 439 of the Session Laws of 1955 and on this premise argues that the payment under the contract was illegal. This chapter amended SDC Supp. 65.0701-2 and so far as pertinent here reads:

'All contracts of any public corporation, whether for the construction of public improvements or contracts for the purchase of materials, supplies or equipment, when such contracts, involve an expenditure equal to or in excess of one thousand dollars, must be let to the lowest responsible bidder.'

SDC Supp. 65.0701-3 amended by this same chapter provides for publication of an advertisement for bids prior to the opening thereof. In support of this view plaintiff cites Sioux Falls Taxpayers Association v. City of Sioux Falls, 69 S.D. 93, 7 N.W.2d 136. In that case involving work of repairing a water tank, this court considered these statutes which were of like wording except for the amount. That portion of Sec. 10 of Ch. 300 of the 1939 Session Laws quoted in the last cited opinion also remains unchanged and now appears as SDC Supp. 65.0704-1: 'It shall be unlawful for any public corporation or its officers to enter into any contract in violation of the terms of this act, and any such contract entered into shall be null and void and of no force and effect.'

While the statutes involved in the several states hereafter referred to may differ in their wording from our own or from each other, they all have the general requirement that before a public contract can be entered into, a notice must be given by advertisement and that the letting must be made to the lowest bidder. In Miller v. Boyle, 43 Cal.App. 39, 184 P. 421, 423, the court said:

'The claim of respondent that the contract between the board of public works, and the petitioner, should only have been awarded after compliance with the provisions of the charter, relative to letting contracts to the lowest bidder, has been disposed of adversely to his contention. The same cases also seem to establish that the board of public works, in employing a duly authorized architect, and upon the terms and conditions prevailing in the community, were adopting reasonable and suitable means, these decisions holding that the engagement of an architect to prepare plans and otherwise render services in connection with the erection of city buildings on a percentage basis is not in violation of the provisions of municipal charters requiring a written contract with the lowest and best bidders. 'The reasonableness of such construction,' said the court in one of these cases, 'is most strikingly illustrated in the present case. An architect is an artist. His work requires taste, skill, and technical learning, ability of a high and rare kind. Advertising might bring many bids, but it is beyond peradventure that the lowest bidder would be least capable and most inexperienced and absolutely unacceptable. As well advertise for a lawyer or civil engineer for the city, and intrust its vast affairs and important interests to the one who would work for the least money."

For comment approving this construction and the later legislative acceptance of it, see Cobb v. Pasadena City Board of Education, 134 Cal.App. 93, 285 P.2d 41. In Stephens County v. J. N. McCammon, Inc., 122 Tex. 148, 52 S.W.2d 53, 55, with reference to a contract entered into by a county commissioners court employing an architect to prepare plans and...