Nevil v. Clifford

• Decision Date: 10 May 1882
• Citation: 55 Wis. 161,12 N.W. 419
• Parties: NEVIL AND ANOTHER v. CLIFFORD AND OTHERS.
• Court: Wisconsin Supreme Court

55 Wis. 161

12 N.W. 419

NEVIL AND ANOTHER

v.CLIFFORD AND OTHERS.

Supreme Court of Wisconsin.

Filed May 10, 1882.

Appeal from circuit court, Rock county.

Winans & Fetlers, for appellants.

Todd & Carpenter and Bennett & Sale, for respondents.

TAYLOR, J.

This action was commenced on the part of the appellants for the purpose of setting aside a judgment obtained by the respondents Frank and John Clifford against school-district No. 1 in the town of Magnolia, and for the purpose of restraining the collection of a tax upon the taxable property of said district to pay said judgment. The grounds for demanding the above relief are set out in the complaint, which reads as follows:

“The complaint of the above named plaintiffs respectfully shows unto the court that they are resident tax-payers and voters in school-district No. 1 of the town of Magnolia in the county of Rock and state of Wisconsin, and that they bring this action and make this their complaint as well in their own behalf as in that of other tax-payers, property owners, and voters in said school-district, who may be similarly interested in the matter hereinafter stated and set forth; that the defendant school-district No. 1 of the town of Magnolia is a corporation in the said town of Magnolia, in the county of Rock and state of Wisconsin, to-wit, a school-district organized and existing under and in pursuance of the laws of the state, and has been such corporation for a number of years last past; that the defendant J. B. Hartley is the town clerk of the said town of Magnolia, duly elected and qualified as such, and in the exercise and discharge of the duties of such office; and that the defendant Wilson Brown is the treasurer of said town of Magnolia, duly elected and qualified as such, and in the exercise and discharge of the duties of such office.

The plaintiffs, further complaining, show that in the months of October and November, 1879, the defendants Frank Clifford and John W. Clifford, under some pretended and fraudulent contract or agreement claimed by them to have been made with the district board of said school-district No. 1, erected, at a cost of about $680, a school building, upon a site and location other and different from the one heretofore and now owned by said school district; that the district board of said school district either has or is about to accept and occupy said building as a school-house, and to abandon the one heretofore and now used by said school-district for school purposes; that the erection of said building by the said Frank Clifford and John W. Clifford, and its acceptance and occupation by said board for school purposes, or any other purpose, is contrary to the wishes of a majority of the electors and property owners in said school-district, as expressed in school-district meetings duly held in and for said district, as was and is well known to the said Frank Clifford and John W. Clifford, and to the said district board and the several members thereof; that the tax-payers and electors of said district never authorized the erection of said building; that no tax for the erection of the same has ever been voted by said district, nor has any loan of money ever been authorized for such purpose; that the said building was erected without authority, and against the express direction of the tax-payers and electors of said district, as expressed by them at school-district meetings duly and legally held in and for said district; and that the action of the said district board, and of the said defendants Frank Clifford and John W. Clifford, in the erection, acceptance, and occupation of said building, was and is in fraud of the rights and interests of the electors and tax-payers of said school-district.

And these plaintiffs further show that since the erection of said building, and on the twenty-fourth day of November, A. D. 1879, the said defendants Frank Clifford and John W. Clifford commenced an action in the circuit court of Rock county against said school-district upon a pretended contract claimed to have been made by them with said school-district for the erection of said building; that on said day the said defendants Frank Clifford and John W. Clifford served, or pretended to serve, upon Samuel S. Lee, the director of said district board, the summons and complaint in said action; that upon such pretended service, and on the same day, to-wit, the twenty-fourth day of November, A. D. 1879, the said Samuel S. Lee, together with the other officers of said district board, filed an answer in said action, admitting all the allegations of said complaint, which said answer was sworn to by the said Samuel S. Lee, as director of said board; that upon the twenty-eighth day of November, A. D. 1879, judgment was entered in said action in favor of the said Frank Clifford and John W. Clifford, and against said school-district, for the sum of $680.79 damages, and $79.77 costs, amounting in all to the sum of $710.56; that the said defendants Frank Clifford and John W. Clifford have caused a certified transcript of said judgment to be filed with the defendant J. B. Hartley, the town clerk of the said town of Magnolia; and that the said J. B. Hartley, as such town clerk, has assessed the same upon the taxable property in said school-district, and that the same is upon the tax roll of said district; and that the said defendant J. B. Hartley, as such town clerk, either has or is about to deliver such tax roll to the defendant Wilson Brown, the treasurer and tax collector of the said town of Magnolia, for collection.

And these plaintiffs further show that the said action was so commenced by the defendants Clifford, the said answer filed by the said district board, and said judgments obtained and entered against said school district, by collusion and secret agreements by and between said defendants Clifford and said district board, and in fraud of the rights of the electors of said school district, and of these plaintiffs and all other tax-payers in said district, and was done with the intent to defraud these plaintiffs and all other tax-payers in said district, and to prevent said district and the tax-payers therein from defending said action or any action brought to enforce said pretended contract; that the said defendants Frank Clifford and John W. Clifford, and each of them, and said school board, and each and every member thereof, well knew, at and prior to the time of the commencement of said action, that it was the purpose and intention of the majority of the electors of said school-district to contest payment for said building, and to defend any action that might be brought to collect the same, and that such intention had been expressed in school-district meetings duly and legally held in and for said district; that these plaintiffs did not know, and they believe that no other tax-payers of said district, except the officers of said district board, knew, that any proceedings had been taken by said Cliffords, or any action commenced by them upon said pretended contract, until after judgment had been entered therein; that it was the intention of these plaintiffs, and a majority of the other tax-payers and electors in said school-district to defend and contest any such action, and that such intention had been expressed in the school-district meetings duly and legally held in and for said district; that upon hearing that such action had been commenced and judgment entered, a majority of the electors of said district, in a school-district meeting duly and legally held in and for said district on the third day of December, A. D. 1879, appointed Hiram York to defend and contest such action for and on behalf of said district, and the tax-payers and electors therein, and that said action was commenced and judgment therein confessed secretly, and by collusion between said Cliffords and the officers of said district board, with the intent to prevent said district from interposing a defence thereto, and thereby to cheat and defraud said district, and these plaintiffs and other tax-payers therein, and that all the acts of the said defendants Clifford, and the district board of the said schooldistrict, are in bad faith, and in direct opposition to the interests of said schooldistrict, and of these plaintiffs and all other tax-payers and electors therein.

Wherefore, these plaintiffs demand judgment, as well in their own behalf as in behalf of all others, tax-payers and electors of said school-district No. 1 of the town of Magnolia; that the district board of said district, their agents, servants, or successors in office, and each and every one of them, be restrained and enjoined from accepting, using, or occupying said building, so erected by the said defendants Clifford, for school purposes or any other purpose for said school-district; that the said defendant school-district No. 1 of the town of Magnolia, J. B. Hartley, town clerk of the said town of Magnolia, and Wilson Brown, treasurer and tax collector of the said town of Magnolia, their agents, servants, and successors in office, be restrained and enjoined from proceeding in any way or manner to collect the said tax so levied and assessed to pay the said judgment as aforesaid, or any portion thereof; that the warrant, assessment, and all proceedings relating to said tax may be adjudged to be illegal and void; that the judgment so obtained by the said defendants Frank Clifford and John W. Clifford may be declared to be illegal, fraudulent, and void, and may be vacated, annulled, and set aside; and for such other or further judgment or relief, or both, as the plaintiffs may be entitled to in the premises; and that they may have and recover the costs and disbursements in this action.”

The defendants and respondents answered the complaint at great length, denying all its material allegations, and insisting upon the justness and validity of the...