Kief v. Mills

• Decision Date: 05 November 1920
• Docket Number: No. 21907.,21907.
• Parties: KIEF, Chippewa County Atty., v. MILLS et al.
• Court: Minnesota Supreme Court

147 Minn. 138

179 N.W. 724

KIEF, Chippewa County Atty.,

v.MILLS et al.

No. 21907.

Supreme Court of Minnesota.

Nov. 5, 1920.

Appeal from District Court, Chippewa County; R. T. Daly, Judge.

From an allowance by the county board of Chippewa county of a bill presented by C. E. Mills, A. E. Kief, as County Attorney of Chippewa County, appealed to the district court. Judgment against the County, and said Kief appeals. Reversed.

Syllabus by the Court

An appeal from the allowance of a claim by a county board vacates the order of allowance, and the issue is for trial de novo on the merits, with the burden of proof on the claimant.

On appeal to this court from a judgment in favor of the claimant, if there is no settled case, judgment will not be ordered against the claimant for want of a reply.

It is competent for a county board, in entering into a contract, to insert stipulations not required by statute, in order to secure the object for which the contract is made, if such stipulations are not contrary to public policy and are made without fraud and impose no impediment to competitive bidding.A. E. Kief, Peterson & McCargar, and C. A. Fosnes, all of Montevideo, for appellant.

C. D. Bensel, of Montevideo, for respondents.

HALLAM, J.

In January, 1919, the county board of Chippewa county entered into a contract with respondent, C. E. Mills, publisher of the Montevideo Daily American, by which Mills agreed to publish in said newspaper during the year 1919, the following:

All the proceedings of the board of county commissioners, within twelve days after the adjournment, provided a copy is received from the county auditor within six days after the adjournment of the board;

Also the financial statement of Chippewa county;

Also all ditch notices;

All the above at sixty cents ($.60) per folio for the first insertion, and twenty-five cents ($.25) for the second and each subsequent insertion;

Also to publish the delinquent tax list at five cents ($.05) per description;

Also to mail a copy of the Montevideo Daily American in which any of the proceedings of the county board are inserted, or in which the delinquent tax list is published, to each taxpayer of Chippewa county as shown by the personal property tax list in the hands of the county treasurer;

Also to mail to the persons in townships affected by any county or judicial ditch as per said tax list, a copy of the Montevideo Daily American in which any ditch notices are inserted.

In June, 1919, respondent presented to the county board a bill for $745.20, for publishing proceedings of the board, personal property tax lists, ditch notices, and financial statements. The county board allowed the bill. Appellant as county attorney appealed to the district court.

Apparently an order of court was made directing the framing of issues, but the order is not in the record. Respondent filed a complaint setting forth his claim. Appellant filed an answer, alleging that the Daily American was not a legal newspaper, that respondent failed to mail copies as provided by the contract, and that he failed to publish the proceedings of the board and the financial statement within the time provided by the contract. There was no reply.

The trial court found, as facts, that the contract was made as above stated; that the Daily American was a qualified newspaper; that respondent filed his bill for printing with the county auditor; and that the county board allowed the bill for the sum of $745.20.

There is no finding as to the merits of the claim except as merit may be inferred from the fact that the county board allowed the claim, and the findings recite that there was no evidence introduced in proof of the claim except the order of allowance. Upon these findings of fact, the court gave judgment against the county for $745.20.

There is no settled case and the real question presented, as we view it, is whether the findings of fact sustain the judgment.

[1] Respondent's position is that the court will indulge the presumption that the action of the county board is just and legal, and that on an appeal from the allowance of a claim by the county board, the burden is on the appellant to prove the invalidity of the claim. The trial court adopted this view. In this we think the court was in error. Section 674, G. S. 1913, provides for an appeal to the district court from the allowance of a claim by the county board. Section 675 provides that upon the appeal being perfected, ‘the proceeding shall be put upon the calendar for trial as an issue of fact,’ that ‘the court shall direct pleadings to be made up as in civil actions, upon which the proceeding shall be tried,’ and that ‘issues of fact shall be tried and judgment rendered and perfected as in civil actions.’

In our judgment this means that the issues shall be tried in the same manner as are the issues in civil actions commenced in the district court, and if we are right in this, it must follow that the issue is to be tried de novo. Strauch v. Uhler, 95 Minn. 304, 104 N. W. 535. The appeal vacates the order of the county board, and the issue is for trial on the merits, with the burden of proof on the claimant, as in an action brought in court to enforce a money demand. The rule of practice in such cases depends so much on particular statutes that the decisions of other states are of doubtful aid, but such decisions as have bearing sustain this position. Hays v. Pugh, 158 Ind. 500, 64 N. E. 13;Dakota County v. Borowsky, 67 Neb. 317, 93 N. W. 686;Box Butte Co. v. Noleman, 54 Neb. 239, 74 N. W....