Goetzman v. Whitaker

• Decision Date: 29 October 1890
• Citation: 81 Iowa 527,46 N.W. 1058
• Parties: GOETZMAN v. WHITAKER ET AL.
• Court: Iowa Supreme Court

81 Iowa 527

46 N.W. 1058

GOETZMAN

v.WHITAKER ET AL.

Supreme Court of Iowa.

Oct. 29, 1890.

Appeal from district court, Boone county; S. M. WEAVER, Judge.

Proceeding by certiorari to test the validity of certain acts of the board of supervisors of Boone county. The facts are stated in the opinion.E. L. Green and J. R. Whitaker, for appellant.

Crooks & Jordan, for appellee Charles Goetzman.

O. M. Brockett, Co. Atty., for appellee Boone county.

ROBINSON, J.

Plaintiff is a resident and tax-payer of Boone county. The defendants in the proceeding as it was commenced are Boone county, the auditor, and the members of the board of supervisors of Boone county. The appellant Whitaker was permitted to intervene as a party defendant before final judgment was rendered. The petition alleges that the board of supervisors of Boone county, at the June session of 1886, adopted the following: “Resolved, by the board of supervisors of Boone county, Iowa, that the salary of the county attorney hereafter to be elected as provided by the act of the 21st general assembly be and the same is hereby fixed at four hundred dollars per annum;” that J. R. Whitaker was duly elected county attorney of Boone county at the general election of the year 1886, and qualified and entered upon the discharge of the duties of the office on the 4th day of January, 1887; that on the 11th day of April, 1887, the board of supervisors adopted the following: “It being manifest to the board that a mistake was made at its June session, 1886, in naming the county attorney's salary, said board being at that session wrongly informed that said officer would receive fees in criminal cases, and it being undisputed that the salary was named on that basis, it is therefore ordered that the further sum of four hundred dollars per annum be added to the amount named at said June session, for the purpose of rectifying the mistake then made;” and that defendants have issued warrants to Whitaker under the resolution last quoted for his salary at the rate of $800 per annum. The petition further alleges that the action of April 11th was illegal, and asks that defendants be required to certify to the clerk of the court a correct transcript of the orders and resolutions of the board of supervisors in relation to fixing the salary in question; that the county auditor be required to show the amount of warrants issued to Whitaker on account of his official salary since January 1, 1887; that the action taken April 11th be reviewed and set aside; and that such further order be made as is right and proper. A writ was issued as prayed, and a return made thereto by the county auditor. The return shows that the action of the board at their meetings in June, 1886, and April, 1887, was as stated in the petition, and that Whitaker was paid $1,000 on account of his salary for the first five quarters of his official term. The fourth paragraph of the return is as follows: “(4) It is further certified and returned as a fact that the salary of the county attorney was at said June session, 1886, intended to be fixed, and intended to be recorded, at eight hundred dollars; but, by mistake, four hundred dollars was deducted from said amount, and the salary was made at four hundred dollars, and the record of said April session was made and entered relative to and in correction of such record of said board at its June session, 1886.” The plaintiff moved for judgment on the return; and on the 23d day of November, 1888, the motion was taken under advisement to be determined in vacation. On the 11th day of January, 1889, in vacation, the judge of the court filed his findings to the effect that there should be a judgment of the court declaring the action of the board taken April 11, 1887, to be null and void, and for costs, and giving counsel permission to prepare a form of judgment entry in accordance with the findings. Four days after the findings were filed, and before judgment was rendered, Whitaker filed his application to be made a party defendant, supported by an affidavit showing that he was entitled to the salary allowed the county attorney, and that he was therefore interested in the order of the board, which plaintiff was seeking to have set aside. On the 28th day of January, 1889, Whitaker filed a motion to set aside the submission made at the preceding November term for the purpose of allowing him to be made a party defendant. At the January term, 1889,--to-wit, on the 15th day of February,--the court set aside the submission, and granted the application of Whitaker. Thereafter, and on the same day, it having been ordered that the defense of the other defendants stand as the defense of Whitaker, the cause was again submitted on the motion of plaintiff, and judgment was rendered setting aside the order of April 11, 1887, as illegal and void. The plaintiff and Whitaker appeal, the appeal of the latter being first perfected.

1. Before the application of Whitaker to be made a party defendant was granted, objections thereto were made on the ground that the applicant was not a necessary nor a proper party; that his interest in the matter in controversy did not entitle him to be made a party; and that his application was not made in time. The appellant is interested in the order which plaintiff asks to have set aside to the amount of $800. There can be no complete and final adjudication of the matter until appellant has had his day in court. It was said in Brown v. Bryan, 31 Iowa, 556, that a railroad company, for whose benefit a tax had been voted, was entitled to intervene in an action brought by taxpayers to enjoin the collection of the tax; and that it was not only a proper but a necessary party to a final and binding determination of the questions involved in the action; and that was true, even though the right to the tax had not matured. We think Whitaker was entitled to intervene at a proper time. Code, § 2683. But it is claimed that his application was not filed in time. It was said in Henry v. Elevator Co., 42 Iowa, 35, that the intervention must be made before the trial commences, and that it cannot be allowed after that time, nor after a settlement has been effected by the parties to the action. That rule was approved in Bank v. Gill, 50 Iowa, 427....