Nevil v. Clifford
| Decision Date | 01 June 1885 |
| Citation | 24 N.W. 65,63 Wis. 435 |
| Parties | NEVIL AND ANOTHER v. CLIFFORD AND OTHERS. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Rock county.
Winans, Fethers & Jeffris, for respondents.
Sale & Pierce, for appellants.
This action, like many others, grows out of a disagreement among the electors of a school-district upon the subject of the erection and location of a new school-house in the district. The respondents and plaintiffs claim to be tax-payers in said district; the appellants (the Cliffords) were the contractors, who claimed to have constructed a new school-house for said district; and Hartley and Brown are the clerk and treasurer of the town in which said district is situate, and their connection with the case arises from the fact that the town clerk inserted in the tax-roll a tax to pay a judgment the Cliffords had obtained against the district, and the town treasurer had the tax-roll in his hands for collection. After building the school-house the Cliffords obtained a judgment against the district for the contract price agreed to be paid to them for so doing by the district school board, and that judgment was certified to the town clerk of the town, and the amount thereof placed upon the tax-roll of said town for the year 1879 as a tax upon the prop-perty of said district, as prescribed by section 488, Rev. St. 1878.
The complaint states in substance that the school board had no authority to enter into a contract with the Cliffords, or any other persons, for the erection of a new school-house for said district: (1) because the school-district had not authorized a school-house to be erected upon the site where the same was built; (2) because no tax had been voted by the district for building a new school-house, and no authority had been given to the board to borrow money on the credit of the district for that purpose; (3) because the contract entered into by the district for building the new school-house called for the expenditure of more than $600, when the district did not contain to exceed 175 inhabitants. The complaint then further alleges that immediately after the erection of said school-house the Cliffords brought an action against said district to recover the contract price, viz., $680; and that, by the collusion of the district board, a judgment was immediately entered in favor of said Cliffords, and against the district, for said sum of $680.79 damages, and $29.70 costs of suit; and that immediately upon the rendition of such judgment the same was certified to the town clerk of the town of Magnolia, and by him inserted in the tax-roll of said town as a tax upon the property of said district.
The sufficiency of this complaint as stating a cause of action against the defendants was considered by this court upon a former appeal. See Nevil v. Clifford, 55 Wis. 161;S. C. 12 N. W. REP. 419. The allegations of the complaint are fully stated in that case, and its sufficiency sustained. It is unnecessary, therefore, to make a more particular statement at this time. The case has now been tried upon its merits by the court without a jury. After hearing the evidence the court finds the following facts and conclusions of law:
FINDINGS OF FACT.
“(1) That said plaintiff, John Nevil, is, and when said action was begun was, and for a long time prior thereto had been, a resident and tax-payer in said school-district No. 1 of the town of Magnolia, and is and was the owner of real and personal property therein subject to taxation, and which was taxed to pay the judgment referred to in the complaint.
(2) That on and prior to the annual school-district meeting held in said district on the twenty-fifth day of August, 1879, said defendant school-district was the owner of a school-house site, with a school-house thereon; that on said last-named day, and at said annual meeting then held in said school-district, a resolution was adopted by said meeting to build a new school-house, and have it completed by November 1st following; that at a subsequent adjourned meeting held August 30, 1879, a resolution was adopted to build said house on the site where the old school-house stood, and that the district board proceed with the erection of said house with all dispatch consistent with good construction.
(3) That at a subsequent adjourned meeting held September 9, 1879, said resolution to build on the old site was rescinded.
(4) That said school-district did not and has not voted any sum of money, or authorized the loan of any sum of money, with which to build a new school-house.
(5) That said school-district had not and has not, at any annual or special meeting for said district, legally designated a site on which said new school-house should be erected.
(6) That the members of the district board of said school-district, on the twenty-second day of September, 1879, met in the village of Evansville, in the town of Union, and there entered into a written contract with the defendants Cliffords for the erection of a school-house in said district at a cost of $680, on a site that had not been legally selected or designated by the district, and for the building of which no money had been voted or loan authorized by said district.
(7) That said Cliffords erected said building under said contract, and that on the twenty-second day of November, 1879, the members of said district board signed a writing acknowledging the completion and acceptance of said building under said contract.
(8) That said Cliffords and the members of said district board knew, at and prior to the time said contract was made, all the proceedings and action that had been had and taken by the district in reference to building a new school-house, and the site for the same, and entered into said contract and erected said building with full knowledge thereof, and knew, or had good reason to believe, that payment thereof by the district would be contested.
(9) That a school was begun in said new building under the direction of said board soon after its completion, and continued from the twenty-fourth day of November, 1879, to the thirty-first day of December, 1879.
(10) That one of the members of the district school board conveyed to said district, on the twenty-second day of September, 1879, the land whereon said building was erected, in consideration of one dollar paid him therefor by said board.
(11) That said school-district No. 1 has never had to exceed one hundred and seventy-five inhabitants.
(12) That, by previous agreement between said Cliffords and the members of said board, said Cliffords and said members met in the city of Janesville, at the law office of Messrs. Cassoday & Carpenter, on the twenty-fourth day of November, 1879, to begin an action in favor of said Cliffords, and against said school-district, under said contract, and to hasten the same to judgment against said district; that said Cassoday & Carpenter were the attorneys of said Cliffords, and that the members of said board were, and each was, desirous to aid said Cliffords in obtaining a judgment, and prevent a defense being made thereto; that to this end an action was begun on said last-named day in favor of said Cliffords against said district, in the circuit court for Rock county, based upon said contract, and that the summons and complaint in said action were on the same day served on each of said school-district officers then present in Janesville, by a clerk in the said law office of Messrs. Cassoday & Carpenter; that the record of said judgment fails to show any service whatever; that after such service, and on the same twenty-fourth day of November, 1879, at said city of Janesville, the director of said school-district and members of said board made and delivered to the attorneys for said Cliffords an answer in said action, admitting all the allegations of said complaint, and did at the same time make and deliver to said attorneys a written waiver of notice of any and all subsequent proceedings in said action; that thereupon, and on the twenty-eighth of November, 1879, judgment was rendered and entered in said action, in said court, in favor of said Cliffords and against said school-district for $680.79 damages, and $29.77 costs; that a certified transcript of said judgment was thereafter filed in the office of the town clerk of said town of Magnolia, and thereupon said town clerk assessed the amount of said judgment upon the taxable property in the said school-district, including the property of the plaintiff Nevil, but omitting that belonging to the plaintiff Hiram Yorke, and thereupon delivered said assessment and tax-roll to the town treasurer of said town for collection, and that said treasurer was proceeding to and with the collection thereof when this action was begun.
(13) That said Clifford and said school-district officers, at and before the time when said action was begun upon said contract, well knew that certain of the resident tax-payers of said district desired said director to defend said district against the enforcement of said contract, and against said action, and intended to contest the payment for said building, or any liability therefor; that said Cliffords and said district officers withheld from the tax-payers of said district all knowledge that an action had been or was about to be begun under said contract, and that these plaintiffs had no knowledge thereof until after said judgment had been obtained, and said tax for the payment thereof levied as aforesaid; that said action was begun and said judgment obtained by collusion by and between said Cliffords and the members of the said district board, and in defraud of the rights of said plaintiff Nevil and the other tax-payers of said district.”
“(1) That said contract between said district board of said school-district No. 1 and said Frank and John...
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