LeBarron v. City of Harvard

• Decision Date: 12 July 1935
• Docket Number: 29268.
• Citation: 262 N.W. 26,129 Neb. 460
• Parties: LEBARRON v. CITY OF HARVARD.
• Court: Nebraska Supreme Court

262 N.W. 26

129 Neb. 460

LEBARRON v. CITY OF HARVARD.

No. 29268.

Supreme Court of Nebraska.

July 12, 1935

Syllabus by the Court.

1. After the due passage of an appropriation bill by a city of the second class, its power to lawfully contract is determined by the amounts carried in such bill, added to the amount on hand of previous levies and appropriations at the date of making such engagement. O. M. Campbell Co. v City of Harvard, 123 Neb. 539, 243 N.W. 653.This power to contract is in no manner diminished by the failure of the corporate authorities to assess to the extent actually authorized.

2. Where a trial is had on a formal, judicial stipulation of facts, not limited by its terms, made in open court, and the judgment rendered on that trial is reversed and the cause remanded, on a subsequent trial such stipulation is admissible in evidence.

3. It is not necessary that an agreed statement of facts admitted by the parties to be true in open court, should be signed by them or their attorneys.

4. Parties will not be relieved from formal, judicial stipulations unless the application for such relief is seasonably made, with diligence, upon due notice, and good cause is shown for granting it.

5. A formal, judicial stipulation by the parties as to facts, so long as it stands, is conclusive between them, and cannot be contradicted by evidence tending to show the facts otherwise.

6. In a case such as this, where the trial court sought to correct a supposed error in failing to sustain a motion for a directed verdict by vacating the verdict returned and then by dismissing the action, this court will, upon reversing the judgment of dismissal, if no other error is presented by the record, proceed to render such judgment as the court below should have rendered, or remand the cause to the court below for that purpose.

Appeal from District Court, Clay County; Blackledge, Judge.

On reargument.

Former judgment reversed and rendered.

For former opinion see 127 Neb. 899, 257 N.W. 261.

Cloyd Stewart, of Clay Center, and Sterling F. Mutz and Robert S Stauffer, both of Lincoln, for appellant.

D. B Massie, of Clay Center, H. G. Wellenseik, of Grand Island, and John M. Paul, of Harvard, for appellee.

Heard before GOSS, C. J., and ROSE, GOOD, EBERLY, DAY, PAINE, and CARTER, JJ.

EBERLY, Justice.

This is the second appearance of this case in this court. The titles differ, however. At the former hearing the issues on appeal were presented as O. M. Campbell Co. v. City of Harvard, and the disposition thereof is reported under that title in 123 Neb. 539, 243 N.W. 653.After reversal and remand, V. J. LeBarron acquired the interest of O. M. Campbell Company, and, as its successor, was substituted as party plaintiff in an amended petition filed with leave of court. The amended petition, in addition to setting forth the acquirement of the cause of action by LeBarron as assignee, pleaded substantially the same cause of action as was relied upon in the original petition. To this amended petition the defendant filed its answer which included affirmative defenses, and plaintiff then replied denying generally the allegations of the answer.

The case was tried to a jury.

Accepting the recital in defendant's brief as a summarization of the record, it appears that, " At the close of the evidence, appellee (City of Harvard) moved for a directed verdict in its favor. The trial court reserved its ruling on this motion and submitted the case to the jury. * * * After the jury returned a verdict in favor of appellant (in the amount as prayed), the appellee filed a motion for new trial and for judgment notwithstanding the verdict. On the hearing of these motions, the trial court sustained the motion for a directed verdict made at the close of the evidence, and the motion for judgment notwithstanding the verdict, for the reason that the appellee, City of Harvard, failed to make an appropriation, and did not have on hand an unexpended and unappropriated balance out of which the consideration of the contract sued upon could be paid."

Accepting the résumé quoted as substantially accurate, in the light of the jury's verdict, the conclusion is that a formal contract in writing was honestly made and entered into by the Campbell Company with the City of Harvard for a certain audit of its records, at a definite price, and was in all respects properly performed and carried out; and recovery was denied by the trial court solely because the unused and unappropriated money in the general fund and the annual appropriation of 1929 were insufficient to meet the expense necessitated by the contract sued on.

This forms the crux of the case now presented to this tribunal. In this opinion the parties will be designated as in the trial court.

On the former hearing this court determined, upon the record then before it, that the making of a contract for an audit of the records of the city of Harvard was within its corporate powers. It was also held:

" Unused and unappropriated money in a city treasury in the general fund at the time a contract for a necessary city audit is executed may, for the purposes of the contract, be available for payment of the auditor's stipulated compensation.

Where unused and unappropriated money in a city treasury in the general fund and the annual appropriation therefor are sufficient to meet the expense of a necessary city audit and are available for that purpose at the time the contract for the audit is executed, subsequent depletion of the fund would not make the contract void.

In absence of evidence showing misconduct or disregard of law, regularity of official acts is presumed." O. M. Campbell Co. v. City of Harvard, 123 Neb. 539, 243 N.W. 653.

The foregoing principles thus announced constitute the law of the case on the second appeal.

On such second appeal, this court affirmed the action of the trial court in directing the entry of a judgment against the plaintiff in LeBarron v. City of Harvard, 127 Neb. 899, 257 N.W. 261.By his motion for rehearing and brief in support thereof, plaintiff challenges the correctness of this affirmance, on the following grounds in substance: That in view of certain facts clearly established by the record, the controlling statutes have been improperly construed or wrongfully ap plied; that the exclusion by the trial court of a stipulation previously entered into by the parties as to the existence of a fund of $1,111.11 in possession of the city treasurer at the time of the making of the contract, made up from moneys previously appropriated and unexpended, constituted a vital error.

" As a starting point for the consideration of the question presented, we may adopt the language of Judge Dillon, that a municipal corporation ‘ possesses, and can exercise the following powers and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation,--not simply convenient, but indispensable.' " Christensen v. City of Fremont, 45 Neb. 160, 63 N.W. 364, 365

The following statutory provisions appear to control or shed light upon the proper determination of the questions involved in this appeal, in so far as the question of corporate powers is concerned, viz., sections 17-566, 17-429, 77-1201, 77-1801, 77-1803, Comp. St. 1929.

In connection with these statutory provisions the undoubted principles of construction appear to be:

" All statutes upon the same general subject are to be regarded as part of one system, and later statutes are to be considered as supplementary or complementary to those preceding them upon the same subject.

Statutes in pari materia should be construed together." State v. Omaha Elevator Co., 75 Neb. 637, 106 N.W. 979, 110 N.W. 874.

See, also, State v. Searle, 86 Neb. 259, 125 N.W. 590; Rohrer v. Hastings Brewing Co., 83 Neb. 111, 119 N.W. 27, 17 Ann.Cas. 998.

" The fiscal and municipal year of each city and village shall commence on the first Tuesday of May each year in so far as revenue and fiscal management are concerned, and on the last Tuesday in April in so far as organization and legislation are concerned." Comp. St. 1929, § 17-566. It was enacted in its present form in 1927 (Laws 1927, c. 46).

In 1887 there was duly enacted the following provision conferring powers on cities of the second class and villages: " To levy taxes for general revenue purposes, not to exceed twenty-five mills on the dollar in any one year, on all property within the limits of said cities and villages taxable according to the laws of the State of Nebraska, the valuation of such property to be ascertained from the books or assessment rolls of the assessor of the proper precinct or township." Comp. St. 1929, § 17-429. See, however, section 77-1201, Comp. St. 1929.

In addition, we have the following statutory provisions which are pertinent to the present controversy:

Section 17-569 provides, in part: " The city council of cities and board of trustees in villages shall, within the first quarter of each fiscal year, pass an ordinance, to be termed ‘ the annual appropriation bill,' in which such corporate authorities may appropriate such sum or sums of money as may be deemed necessary to defray all necessary expenses and liabilities of such corporation, not exceeding in the aggregate the amount of tax authorized to be levied during that year; and in such ordinance shall specify the objects and purposes for which such appropriations are made, and the amount appropriated for each object or purpose."

By section 17-570 it is provided: " Before such annual appropriation bill shall be passed, the council or trustees shall...