Lauder v. Heley
| Decision Date | 18 March 1913 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Richland County; C. A. Pollock, Sp. J.
From an order overruling a demurrer to the complaint, defendants appeal.
Affirmed.
Dan R Jones and Geo. W. Freerks, for appellants.
In election-contest cases, there is no provision of law authorizing a stay of proceedings, or a supersedeas of the judgment, or a suspension thereof. Rev. Codes, §§ 696-700; Fylpaa v. Brown County, 6 S.D. 634, 62 N.W 962; Jayne v. Drorbaugh, 63 Iowa 711, 17 N.W. 433; Fawcett v. Pierce County Super. Ct. 15 Wash. 342, 55 Am. St. Rep. 894, 46 P. 389; Allen v. Robinson, 17 Minn. 113, Gil. 90; Honey v. Davis, 38 Tex. 63; People ex rel. Wagenseil v. Stephenson, 98 Mich. 218, 57 N.W 115.
The judgment in an election-contest case is self-executing, and there can be no stay. Rev. Codes, § 7215; State ex rel. Craig v. Woodson, 128 Mo. 497, 31 S.W. 105; State ex rel. Dodson v. Meeker, 19 Neb. 444, 27 N.W 427; State ex rel. Hunt v. Kearney, 28 Neb. 103, 44 N.W. 90; Jayne v. Drorbaugh, 63 Iowa 711, 17 N.W. 433; State ex rel. Lewis v. Marion County, 14 Ohio St. 515; Whitlock v. Wade, 117 Iowa 153, 90 N.W. 587; 20 Enc. Pl. & Pr. 1244, note 4.
Administrator's bond given under an erroneous order of the court is not voluntary nor effective. Kerr v. Lowenstein, 65 Neb. 43, 90 N.W. 931; Leonard v. Cowling, 121 Ky. 631, 87 S.W. 812, 89 S.W. 131; Walker v. Tangipahoa, 111 La. 321, 35 So. 585; United States v. Morris, 153 F. 240; Davis v. Huth, 43 Wash. 383, 86 P. 654; Palmer v. Harris, 23 Okla. 500, 138 Am. St. Rep. 822, 101 P. 852; Gandy v. State, 10 Neb. 243, 4 N.W. 1019; Cooperrider v. State, 46 Neb. 84, 64 N.W. 372; Penn Mut. L. Ins. Co. v. Creighton Theatre Bldg. Co. 51 Neb. 659, 71 N.W. 279; Home F. Ins. Co. v. Dutcher, 48 Neb. 755, 67 N.W. 766; Prante v. Lompe, 74 Neb. 210, 104 N.W. 1150; Grelle v. Pinney, 62 Conn. 478, 26 A. 1106; Day v. Gunning, 125 Cal. 527, 58 P. 172; United States ex rel. Crawford v. Addison, 22 How. 174, 16 L.Ed. 304.
Effective estoppel must be mutual. Unionville v. Martin, 95 Mo.App. 28, 68 S.W. 605; Gallaher v. Lincoln, 63 Neb. 339, 88 N.W. 505; Armfield v. Moore, 44 N.C. (Busbee, L.) 157.
Estoppel operates only in favor of the person who has been misled to his injury. Hubbard v. Mutual Reserve Fund Life Asso. 80 F. 681; Ketchum v. Duncan, 96 U.S. 659, 24 L.Ed. 868; Scoby v. Sweatt, 28 Tex. 713; Crandall v. Mosten, 24 A.D. 547, 50 N.Y.S. 145; Payne v. Burnham, 62 N.Y. 69; Nell v. Dayton, 43 Minn. 242, 45 N.W. 229.
Undertaking effecting nothing is without consideration. 2 Cyc. 924, and cases cited; Ham v. Greve, 41 Ind. 531; Olsen v. Birch, 1 Cal.App. 99, 81 P. 656; Gregory v. Obrian, 13 N.J.L. 11; Gimperling v. Hanes, 40 Ohio St. 117; Perez v. Garza, 52 Tex. 571; Lamoille Prob. Ct. v. Gleed, 35 Vt. 24.
Private parties cannot make binding contracts with respect to the tenure or compensation, fees, etc., of public office. Chitty, Contr. 11th Am. ed. 990-1016; Bliss v. Lawrence, 58 N.Y. 442, 17 Am. Rep. 273; Sherman v. Burton, 165 Mich. 293, 33 L.R.A.(N.S.) 87, 130 N.W. 667; Conklin v. Conklin, 165 Mich. 571, 131 N.W. 154; Waldron v. Evans, 1 Dak. 11, 46 N.W. 607; Buck v. Walker, 115 Minn. 239, 132 N.W. 205, Ann. Cas. 1912D, 882; Bodenhofer v. Hogan, 142 Iowa 321, 134 Am. St. Rep. 418, 120 N.W. 659; Bailey v. Sibley Quarry Co. 166 Mich. 321, 129 N.W. 17; Dunkley v. Marquette, 157 Mich. 339, 122 N.W. 126, 17 Ann. Cas. 523; Forbes v. McDonald, 54 Cal. 99; Ham v. Smith, 87 Pa. 63; Hunter v. Nolf, 71 Pa. 282; Martin v. Wade, 37 Cal. 168; Gray v. Hook, 4 N.Y. 449; Gaston v. Drake, 14 Nev. 175, 33 Am. Rep. 548.
Assignment of salary of an office -- void as against public policy. Ryall v. Rowles, 1 Ves. Sr. 348, 2 White & T. Lead. Cas. in Eq. 734; Davis v. Marlborough, 1 Swanst. 74, 2 Wils. Ch. 130; Pollock, Contr. 289; Greenhood, Pub. Pol. 593; 2 Am. & Eng. Enc. Law, 2d ed. 1033; Sweeney v. Karsky, 25 Neb. 197, 58 P. 813.
Estoppel can never be predicated on a misconception of the law, on part of either or both parties to a transaction. Ross v. Banta, 140 Ind. 120, 34 N.E. 865, 39 N.E. 732; Fletcher v. Holmes, 25 Ind. 458; McGirr v. Sell, 60 Ind. 249; Long v. Anderson, 62 Ind. 537; Lash v. Rendell, 72 Ind. 475; Hosford v. Johnson, 74 Ind. 479; Estis v. Jackson, 111 N.C. 145, 32 Am. St. Rep. 784, 16 S.E. 7; 16 Cyc. 720.
Purcell & Devit and W. S. Lauder, for respondent.
In election-contest case, where a bond or supersedeas is voluntarily given by the defeated party, who accepts and retains the benefits arising from the bond, both principal and sureties are estopped to deny its validity or their liability thereon as obligors. Love v. Rockwell, 1 Wis. 383; Clark v. Miles, 2 Pinney (Wis.) 432; Gudtner v. Kilpatrick, 14 Neb. 347, 15 N.W. 708; Braithwaite v. Jordan, 5 N.D. 233, 31 L.R.A. 238, 65 N.W. 701; 5 Cyc. 748, and cases under note 13.
Bond providing for payment of all damages, good. Adams v. Thompson, 18 Neb. 541, 26 N.W. 316; Dunterman v. Storey, 40 Neb. 447, 58 N.W. 949; Flannagan v. Cleveland, 44 Neb. 58, 62 N.W. 297; Stevenson v. Morgan, 67 Neb. 207, 108 Am. St. Rep. 629, 93 N.W. 180.
Such instrument may be enforced as a common-law bond. Daniels v. Tearney, 102 U.S. 415, 26 L.Ed. 187.
Benefits accepted under such bond creates liability. Ferguson v. Landram, 5 Bush, 230, 96 Am. Dec. 350; Van Hook v. Whitlock, 26 Wend. 43, 37 Am. Dec. 246; State v. Cannon, 34 Iowa 322; Co-operative Asso. v. Rohl, 32 Kan. 663, 5 P. 1; Barratt v. Grimes, 10 Kan.App. 181, 63 P. 272; Dennard v. State, 2 Ga. 137; 1 Enc. Pl. & Pr. 1019; Dobler v. Strobel, 9 N.D. 104, 81 Am. St. Rep. 530, 81 N.W. 37.
Benefits had by the giving of the bond which would not have been received without the bond. Mueller v. Kelly, 8 Colo.App. 527, 47 P. 72; Ryan v. Webb, 39 Hun, 435; Hester v. Keith, 1 Ala. 316; Coughran v. Sundback, 13 S.D. 119, 79 Am. St. Rep. 886, 82 N.W. 507; Babcock v. Carter, 67 Am. St. Rep. 193, monographic note.
The bond was not given as part of any agreement between parties; it was given in compliance with the order of the court; such bond is not void as being against public policy. Sweeney v. Karsky, 25 Nev. 197, 58 P. 813; Coughran v. Sundback, 13 S.D. 119, 79 Am. St. Rep. 886, 82 N.W. 507.
Where a bond is voluntarily made, and the principal enjoys the benefits secured, and a breach occurs, it is too late to question its validity. United States v. Hodson, 10 Wall. 395, 19 L.Ed. 937; Daniels v. Tearney, 102 U.S. 415, 26 L.Ed. 187; Wisconsin Trust Co. v. Chapman, 121 Wis. 479, 105 Am. St. Rep. 1032, 99 N.W. 341; McVey v. Peddie, 69 Neb. 525, 96 N.W. 166; Stevenson v. Morgan, 67 Neb. 207, 108 Am. St. Rep. 629, 93 N.W. 180; United States Fidelity & G. Co. v. Ettenheimer, 70 Neb. 144, 113 Am. St. Rep. 783, 97 N.W. 227, 99 N.W. 652; Douglass v. Unmack, 77 Conn. 181, 107 Am. St. Rep. 25, 58 A. 710; Arthur v. Sherman, 11 Wash. 254, 39 P. 670; McFadden v. Fritz, 110 Ind. 1, 10 N.E. 120; Capital Lumbering Co. v. Learned, 36 Ore. 544, 78 Am. St. Rep. 792, 59 P. 454; 2 Herman, Estoppel, §§ 1040, et seq. See also §§ 1043-1045; 11 Am. & Eng. Enc. Law, 446-447, and cases cited, note 1 p. 447--also note 8, p. 446; Bigelow, Estoppel, chap. 24, p. 642.
This is an appeal from an order overruling a demurrer to the complaint, the ground of the demurrer being that such complaint fails to state facts sufficient to constitute a cause of action.
The complaint is too lengthy to incorporate in this opinion, nor do we deem it necessary so to do in order to intelligently present the points of attack made against it. The facts briefly stated are as follows:
At the general election held in Richland county on November 8, 1910, the defendant Frank Heley and one George E. Moody were opposing candidates for the office of sheriff; Moody receiving 1,513 votes, and Heley 1,502 votes, according to the official canvass; that thereupon the said canvassing board duly declared Moody elected, and a certificate of election in due form was issued to him by the county auditor.
On December 12, 1910, Heley served upon Moody a notice of election contest, wherein he alleged, in substance, that he, and not Moody, had received a plurality of the legal votes cast at said election, and that he, and not Moody, was duly elected to said office; thereafter Moody duly served his answer to said notice of contest, putting in issue all the allegations contained in such notice, and alleging generally that he, Moody, was in truth and in fact duly elected to such office. In January, 1911, said contest was tried, and in February the court made and filed its findings of fact and conclusions of law in Moody's favor, and judgment was given and entered accordingly, and notice of the entry thereof duly served upon the attorneys for the contestant, Heley. No appeal was taken therefrom, and at the expiration of sixty days the same became final and irrevocable.
Moody duly qualified for said office, and on January 4, 1911 demanded possession thereof from Heley, who was then in possession, having been elected thereto at the general election of 1908. Heley refused to surrender possession of the office, and on January 5, 1911, Moody instituted mandamus proceedings against Heley to oust him from such office, basing his claim upon his prima facie right to the office by virtue of the certificate of election. An answer and return to the alternative writ of mandamus was interposed, and said mandamus proceedings duly tried, and the district court, on February 6, 1911, duly made an order that a peremptory writ of mandamus issue against said Heley, and on February 7, 1911, a peremptory writ was issued and such notice thereof duly served upon the attorneys for the said...
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