Mitchell v. County Sanitation Dist. No. One of Los Angeles County
| Citation | 330 P.2d 411,164 Cal.App.2d 133 |
| Parties | George A. MITCHELL, Petitioner, v. COUNTY SANITATION DISTRICT NUMBER ONE OF LOS ANGELES COUNTY, State of California, and J. M. Lowery, County Auditor of Los Angeles County, State of California, Auditor of Said Board, Defendants. George A. MITCHELL, Petitioner, and County Sanitation District Number One of Los Angeles County, State of California, Defendant, Respondents, v. J. M. LOWERY, Defendant, Appellant. Civ. 23084. |
| Decision Date | 14 October 1958 |
| Court | California Court of Appeals Court of Appeals |
Harold W. Kennedy, County Counsel, Los Angeles, Alfred Charles De Flon, Deputy County Counsel, Hollywood, for appellant.
No appearance for respondent George A Mitchell.
Gordon, Knapp & Gill, Joseph C. Gill, Los Angeles, for respondent County Sanitation Dist. No. One of Los Angeles County.
On the original trial of this action, a mandamus proceeding to compel the county auditor Lowery to pay a valid municipal court judgment against the county sanitation district for interest on bond coupons and entitled, 'George A. Mitchell, Petitioner, v. County Sanitation District Number One of Los Angeles County, State of California, and J. M. Lowery, County Auditor of Los Angeles County, State of California, Auditor of Said Board, Defendants,' judgment was rendered in favor of petitioner Mitchell, and solely against appellant J. M. Lowery, as auditor of the board of directors of the district, directing him to issue certain warrants in favor of petitioner. Lowery appealed from the judgment and served his opening brief on both Mitchell and the sanitation district. In opposition thereto they each filed separate briefs. Lowery was at all times represented by the county counsel; the sanitation district had its own counsel, as authorized by section 4739, Health and Safety Code, who represented it in all of the within litigation. The judgment was affirmed (150 Cal.App.2d 366, 309 P.2d 930), and a petition for hearing was denied by the Supreme Court. The remittitur included an award of costs on appeal to 'respondents.'
Pursuant thereto, Mitchell and the sanitation district filed separate memorandum for their costs and disbrusements on appeal. Before the court below Lowery made two motions--to strike the cost bill of the sanitation district on the ground it was not a party to the appeal and therefore was not entitled to costs; and to be relieved of personal liability for costs in accordance with section 1095, Code of Civil Procedure. The trial court denied both motions and it is from the orders denying the same he appeals.
It is the contention of appellant, in connection with his motion to strike the sanitation district's cost bill, that the district was neither a 'prevailing party' within the purview of rule 26(a), Rules on Appeal, nor an 'adverse party' to the appeal under section 938, Code of Civil Procedure. He urges on his motion to be relieved of personal liability for costs that in appealing from the judgment in the mandamus action he acted in good faith in a representative capacity on behalf of the sanitation district, and that under section 1095, Code of Civil Procedure, he is entitled to relief.
At the request of appellant the record in the mandamus proceeding has been incorporated by reference into the record before this court. Therein we note, as did the reviewing court in its opinion disposing of the matter (150 Cal.App.2d 366, 309 P.2d 930), that the superior court litigation was originally made necessary by the refusal of Lowery, as auditor of the board of directors of the sanitation district, to honor a demand previously reduced to a final judgment in a municipal court action brought by Mitchell against the district. This action had its genesis in the refusal of the district, because the obligation had been outlawed by the statute of limitations, to pay interest on certain bonds issued by it and held by Mitchell who had been out of the country on maturity date. Lowery was not therein joined as a party defendant--only the sanitation district was sued. The district, through its board of directors and by resolutions, waived the defense of the statute of limitations at the request of Mitchell's attorney in open meeting, and upon being informed by its counsel that it had intentionally done so, as set forth in its answer, the municipal court granted judgment on the pleadings. Thereafter, when Mitchell, pursuant to the judgment, made demand upon Lowery for payment of the coupons from the funds of the sanitation district, he refused. Mitchell sought the writ of mandate in the superior court to compel him to pay the amount of the judgment. In that proceeding Lowery attacked the waiver of the statute of limitations in the municipal court as being beyond the scope of the sanitation district's legal powers and alleged, among other things, that the board of directors of the district had 'improperly and illegally' agreed with Mitchell's attorney to waive the statute.
This court, speaking through Mr. Justice Fourt, affirmed the superior court judgment (150 Cal.App.2d 366, 309 P.2d 930) and declared that it was entirely proper under the circumstances for the district to waive the statute of limitations to permit it to honor and pay its legitimate debts, for which it had the funds available. One of Lowery's contentions on that appeal was that the power of the board to waive the statute was not determined by the municipal court after a 'fair, open, adversary hearing,' that Mitchell's judgment was obtained by 'concert and improper agreement between Mitchell and the Board,' and that a violation of the board's so-called official 'trust' required a nullity of the waiver. (Appellant's Opening Brief and Closing Brief, No. 22100.)
Although in the mandamus proceeding Lowery, in his unverfied counterclaim, alleged that the board of directors of the district acted 'fraudulently and in collusion and concert with the plaintiff,' his amended verified counterclaim eliminated the claim. However, on appeal, by way of argument, Lowery placed principal reliance for his contentions upon cases involving fraud or collusion, thereby implying the existence of such a situation. The court took cognizance of this and other claims and resolved them adversely to Lowery. It is obvious that this court, too, believed there existed an insinuation against the motives of the board, for it went to some extent to show that Mitchell's counsel presented his claim to the board in a 'forthright manner,' that before the meeting he had 'never seen nor heard of any of the members of the board of directors, or the attorney for the District,' had 'never discussed the matter with any member of the board individually' and that all matters relating to the waiver were determined in 'open public meeting' (150 Cal.App.2d 366, 368, 309 P.2d 930, 931); and concluded, at page 376 of 150 Cal.App.2d, at page 936 of 309 P.2d: 'It is difficult to see how or in what manner the District was imposed upon in the present case.'
Appellant urges here that the sanitation district itself (as opposed to its board of directors) had a common interest with, and was not a party adverse to, him in the prior appeal. We see no merit in this contention for we cannot comprehend how the district could act except through its board of directors.
We agree with the position advanced by repondent that Lowery's criticisms of the governing board's motives; the implied suggestion of 'fraud or collusion'; and his attacks on the integrity and legality of the board's acts necessarily made the district an adverse party in the prior appeal and that by refusing to draw the warrants as ordered by the board pursuant to the municipal and superior courts' judgments, from which the district did not appeal, appellant placed himself in a position adverse to the district.
The early case of Senter v. De Bernal, 1869, 38 Cal. 637, 640-641, construed the term 'adverse party' found in former Practice Act, section 335 (now § 938, Code of Civil Procedure) as every party whose interest in the subject matter of an appeal is adverse to, or will be affected by, the reversal or modification of the judgment or order from which the appeal has been taken, irrespective of whether he appears upon the face of the record as plaintiff, defendant or intervenor. In the instant case the integrity of an official body and the propriety of its acts constituted one of the pivotal questions, becoming a major part of the subject matter of the previous appeal, requiring a defense on the part of the district and by necessity making it a party respondent.
Of interest at this point is his declaration in appellant's previous Notice of Appeal (No. 22100) that he appealed as an 'officer' and 'employee' of the district, as its auditor, 'and on behalf of said County Sanitation District Number One.' Since in the original mandamus proceeding the sanitation district and Lowery were named as separate defendants, and since the district did not appeal from the judgment, it is apparent that the district was willing to pay the claim. Although describing himself as an 'employee' and 'officer' of the district it is clear from the record that appellant in prosecuting his appeal was acting neither under the authority or direction of the board of directors of the district or its counsel, nor with their consent or approval, but was in fact acting in opposition to their authority, contrary to their direction, and in his own behalf. Lowery's Notice of Appeal certainly gave the district the right, if not the duty, to appear in the appellate proceedings and disavow any purported appeal on its behalf. This it did, effectively defending its waiver of the statute of limitations, standing on its original determination to pay its legitimate obligations.
Additionally, the district was designated as a 'respondent' in the Clerk's...
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