Lynch v. Bd. Of Edn.

• Decision Date: 06 April 1927
• Docket Number: 19955
• Citation: 156 N.E. 188,116 Ohio St. 361
• Parties: Lynch v. Board Of Education Of City School District Of City Of Lakewood.
• Court: Ohio Supreme Court

156 N.E. 188

116 Ohio St. 361

Lynch v. Board Of Education Of City School District Of City Of Lakewood.

No. 19955

Supreme Court of Ohio

April 6, 1927

Attorney General - Recovery of public money illegally expended by political subdivision - Advisory duty not limited to expenditures from state treasury - Section 286, General Code - Primary duty upon city solicitor or director of law - Adverse judgment not void for failure to co-operate with attorney general - Voluntary payment and satisfaction of judgment ends controversy - Defendant cannot prosecute appeal or error, or vacate judgment.

1. Section 256, General Code, imposes an advisory duty upon the Attorney General in regard to the recovery of public money illegally expended by any political subdivision of the state and where such expenditures are not made from the state treasury.

2. Where such expenditures are made by a board of education of a city, the primary official duty and responsibility rests upon the city solicitor or director of law, and a failure to discharge that duty and a failure by him to cooperate with the Attorney General, resulting in an adverse judgment, does not destroy the jurisdiction of the court, or render the judgment void.

3. Where the court rendering judgment has jurisdiction of the subject-matter of the action and of the parties, and fraud has not intervened, and the judgment is voluntarily paid and satisfied, such payment puts an end to the controversy, and takes away from the defendant the right to appeal or prosecute error or even to move for vacation of judgment.

On June 20, 1922, the bureau of inspection and supervision of public offices made and filed a report of the examination of the city school district of the city of Lakewood. It was reported that the city school district had made certain illegal expenditures and a finding was made as a basis for recovery of the sum of $480 found to be due from the superintendent of schools, one Charles P. Lynch. The bureau's finding grew out of the following facts, which were set forth in the agreed statement of facts in this cause, to wit:

"On or about May 13, 1919, the board of education of Lakewood Ohio, entered into a written contract with Charles P. Lynch for a term of five years, beginning the 1st day of September 1919, and ending on the 31st day of August, 1924, at a stipulated salary of $5,000 per year; that, thereafter on June 1.3, 1921, the said board of education passed a resolution wherein it was recited that by reason of a substantial increase in the duties of the superintendent, an increase in pay for the unexpired term of the contract was made, and provided that said increase should be paid at the rate of $800 the first year following adoption of said resolution and $1,000 each for the remaining two years of the period of the contract.

"In pursuance of this resolution the sum of $480 was paid to the said Charles P. Lynch, and there is now due him under the terms of the resolution the sum of ___.

"It is agreed that the duties of the superintendent were as a matter of fact substantially increased, at the time the resolution was passed by the board to increase the superintendent's compensation; that the superintendent thereafter entered upon the performance of these increased duties, and has since performed same in a satisfactory manner."

A copy of the finding of the bureau was filed in the office of the city solicitor of the city of Lakewood, as required by Section 286, General Code, and on December 11 1922, the city solicitor, whose title under the charter is that of law director, brought suit in the common pleas court of Cuyahoga county to recover said sum of $480, but not within the period of 90 days, as required by that section.

The superintendent, Lynch, answered, admitting his contract with the board of education and his receipt of the extra compensation during the period of his term of service covered by said contract; pleaded the performance of additional duties, and claimed legality for the payment of increased compensation. He also filed a cross-petition in the same action to recover additional compensation not yet paid to him, in the sum of $2,320. The issues were completed by a reply filed by the board of education, which was a general denial of the allegations of the answer and cross-petition.

The petition in that case was filed December 11, 1922, and the issues were completed by the reply filed on April 7, 1923. After the issues were completed, the exact date not being shown by the record, copies of the pleadings were sent by the law director to the Attorney General, and that official, in a letter dated April 23, 1923, made acknowledgment and the following request in the same letter:

"Will you kindly keep this department advised of the progress of this case, and, in accordance with Section 286 of the General Code, submit the journal entry before the same is filed at the conclusion of the trial."

It does not appear that the Attorney General was counsel of record in the case, or had any part in the trial thereof. A jury being expressly waived, the issues were submitted to the court upon the foregoing agreed statement of facts, and on May 16, 1924, the court made the following entry:

"The parties by their attorneys came, waive a jury, and submit this cause to the court; on consideration whereof the court finds for the defendant on his cross-petition in the sum of $2,440. The court further finds for the defendant on plaintiff's petition."

Thereafter, on June 2, 1924, the law director advised the Attorney General of the outcome of the suit without sending any proposed journal entry, and inquired whether the Attorney General desired to have the case taken to the Court of Appeals on error. Thereafter on June 6, 1924, the Attorney General replied, expressing surprise at the outcome of the case, and concluding his letter as follows:

"For these reasons please carry this case on error to the Court of Appeals. If it will be of any help to you, this department is ready to cooperate with you in furtherance of this matter at your request."

Thereafter, without any further correspondence, and without any journal entry being submitted to the Attorney General, a judgment was entered on July 2, 1924, as follows:

"Neither party desiring a new trial, it is therefore considered that said defendant recover of said plaintiff his said damages and also its costs of this suit. Judgment is rendered against the plaintiff for the costs herein."

Thereafter the judgment was paid by the board of education without the knowledge of the Attorney General. Many months later the Attorney General made further inquiry about the matter, and was then advised of all that had transpired in the meantime, and the Attorney General then sought by motion to have the judgment vacated, and to have a new trial, because of the failure to submit the journal entry before judgment was entered, the motion being based upon the provisions of Section 11631, General Code, authorizing vacation of judgment and allowance of new trial after term, as provided in paragraph 3 of that section as follows: "For mistake, neglect or omission of the clerk, or irregularity in obtaining a judgment or order."

The trial court, after full hearing, overruled the motion, and the judgment became final. Error was prosecuted to the Court of Appeals, and that court reversed the judgment and remanded to the court of common pleas for further proceedings. The cause has been admitted to this court upon allowance of motion to certify the record.

Messrs. Binyon & Williams and Mr. R. E. Williams, for plaintiff in error.

Mr. Edward C. Turner, attorney general, Mr. John A. Elden, Mr. Charles F. Ohl, and Mr. William L. David, for defendant in error.

MARSHALL C. J.

This cause involves an interpretation and application of Section 286 of the General Code. The statutes relating to the bureau of inspection and supervision of public offices are contained in Sections 274 to 291, General Code, both inclusive. Section 286 provides that the result of an examination must be set forth in a report, and, if the report relates to expenditures from the state treasury, one copy shall be filed with the Attorney General. If it relates to expenditures from the treasury of a city, or city school district, a copy shall be filed with the city solicitor of such city. Other provisions are made concerning reports of expenditures for other subdivisions of the government. It is further provided:

"If the report sets forth that any public money has been illegally expended, * * *...