Niklaus v. Abel Const. Co.

• Decision Date: 28 June 1957
• Docket Number: No. 34145,34145
• Citation: 83 N.W.2d 904,164 Neb. 842
• Parties: William NIKLAUS, for the benefit and on behalf of the City of Lincoln, Nebraska, a body politic and the taxpayers and residents of said City, Appellant, v. ABEL CONSTRUCTION COMPANY, a corporation, and Universal Surety Company, a corporation, Appellees.
• Court: Nebraska Supreme Court

Page 904

83 N.W.2d 904

164 Neb. 842

William NIKLAUS, for the benefit and on behalf of the City of Lincoln, Nebraska, a body politic and the taxpayers and residents of said City, Appellant, v. ABEL CONSTRUCTION COMPANY, a corporation, and Universal Surety Company, a corporation, Appellees.

No. 34145.

Supreme Court of Nebraska.

June 28, 1957.

Syllabus by the Court

1. The expression 'in their proper persons' contained in section 7-110, R.R.S.1943, patently is derived from the Latin 'in propria persona' and means in their own persons.

2. Although taxpayers have an interest which entitles them to protect the interest of a municipal corporation, the cause of action remains in the corporation, and final relief is for its benefit.

3. If a taxpayer is permitted to maintain a taxpayer's suit, it is not in his individual right, but as the representative of the district whose interests are alleged to be jeopardized by the inefficiency or maladministration of its officers.

4. In a taxpayer's action potentially all of the taxpayers and citizens are parties.

5. As a general rule a plaintiff cannot join an individual cause of action and a representative cause of action.

6. Section 15-322, R.R.S.1943, clearly recognizes that the cause of action is that of the city and not that of the citizen or taxpayer.

7. Where the officers of a public corporation refuse to put the necessary judicial machinery in motion upon demand being made therefor and failure to so act, a taxpayer may bring suit on behalf of himself and others similarly situated. The direct injury to be remedied where the taxpayer intervenes and sets the judicial machinery in motion for that purpose is not personal and direct to himself, but to the corporation.

8. Courts will not permit laymen to appear in court in a representative capacity and such a rule may not be circumvented by subterfuge.

9. While a layman may represent himself in court, he cannot, even on a single occasion, represent another, whether for a consideration or not.

10. Proceedings in a suit by a person not entitled to practice are a nullity, and the suit may be dismissed.

Herbert W. Baird, Lincoln, for appellant.

Woods, Aitken & Aitken, Lincoln, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH JJ.

SIMMONS, Chief Justice.

This is an action brought by William Niklaus 'for the benefit and in behalf of the City of Lincoln, Nebraska, a body politic,' as recited in the caption of the petition and as recited in the body of the petition 'for benefit of city of Lincoln.' The defendants are Abel Construction Company, a corporation, and 'Universal Surety Company.'

The petition recited that plaintiff is a citizen and taxpayer and that the city of Lincoln is a municipal corporation operating under a Home Rule charter. It recited that a demand upon the mayor and city council to bring the action would be useless and that immediate action was necessary to protect the citizens and taxpayers.

The petition then, in nine separate causes of action, alleged that the city of Lincoln entered into paving contracts with the Abel Construction Company; that the Universal Surety Company provided the performance bond; and that the contracts are illegal and void. It further alleged that payments by the city had been made under the contracts in amounts unknown to the plaintiff and that future payments would be made unless enjoined. It prayed for judgment 'for benefit of city of Lincoln, Nebraska,' in the sum of $1,000,000 and for a permanent injunction to prevent future payments.

The petition was filed May 2, 1953. On May 29, 1953, an 'Amended and Supplemental Petition at Law' was filed. This petition in its caption recited, 'William Niklaus, for the benefit and on the behalf of the City of Lincoln, Nebraska, a body politic and the tax-payers and residents of said City, Plaintiff.' The amended petition begins, '* * * plaintiff for the benefit of the City of Lincoln, * * *.'

Among other things it alleged that on May 14, 1953, demand was made on the mayor and council to refrain from further performance of all contracts referred to in the amended petition and to bring action to recover monies 'illegally paid' thereunder and that the demand had not been complied with. Although not stated in the petition, it appears from the briefs that this allegation as to a demand is based on section 15-322, R.R.S.1943. Petitioner then in 24 separate causes of action made allegation about 24 paving contracts between the city and Abel Construction Company wherein the Universal Surety Company furnished the performance bond. It alleged that the contracts were 'corrupt, fraudulent, illegal and void.' It sought a recovery of judgment on the 24 causes of action in the sum of $740,948.60, 'for the benefit and on behalf of the City of Lincoln, Nebraska, a body politic and the tax-payers and residents of said City.'

Issues were made and trial was had. At the close of all the evidence defendants moved for a dismissal and judgment for each of them on three grounds: (1) The amended petition did not state facts sufficient to constitute a cause of action; (2) the evidence was insufficient to sustain a judgment in favor of the plaintiff; and (3) 'The record now shows that William Niklaus, plaintiff herein, has engaged in illegal and unauthorized practice of law in connection with the institution and prosecution of this action and the various proceedings therein. And said unlawful and unauthorized conduct has nullified the entire proceedings.'

The trial court made findings of fact, dismissed the action, and taked costs to the plaintiff.

Plaintiff appeals. Defendants here ask for affirmance urging, among other reasons, that above quoted from their motion in the trial court.

Mr. Niklaus was admitted to the practice of the law at the bar of this court on the 1st day of July 1914.

By opinion filed June 29, 1948, Mr. Niklaus' license to practice law was revoked and he was disbarred from the further practice in this state. That order has not been modified or set aside. State ex rel. Nebraska State Bar Ass'n v. Niklaus, 149 Neb. 859, 33 N.W.2d 145.

We are then at the outset confronted with questions that go directly to the integrity of judicial proceedings and the administration of justice in this state.

The first question is: Was Mr. Niklaus practicing law in this case contrary to the order of disbarment? If that question is answered in the affirmative, then the next question is: What is its effect on the litigation here involved?

The evidence is that the petition in this action was drafted by Herbert Baird, a member of the bar of this state. It is signed by Mr. Niklaus as plaintiff and beneath that, 'Herbert Baird Atty for Pff.' The amended petition bears Mr. Niklaus' personal signature and beneath that, 'By Herbert Baird Atty for Pff.' It is obvious that Mr. Niklaus' signature was not signed 'by' Mr Baird. Mr. Niklaus filed the original petition with the clerk of the district court.

The praecipe for the issuance of summons filed with the original petition bears the personal signature of Mr. Niklaus. Mr. Baird did not sign the pracecipe.

Section 25-501, R.R.S.1943, provides: 'A civil action must be commenced by filing in the office of the clerk of the proper court a petition, and causing a summons to be issued thereon.'

It is obvious that Mr. Niklaus, and not Mr. Baird, caused the summons to be issued.

Section 7-112, R.R.S.1943, provides: 'Upon filing original papers in any case, it shall be the duty of an attorney to endorse thereon his name.'

During the progress of this case Mr. Niklaus prepared and filed praecipes for subpoenas duces tecum to witnesses. These are signed, 'William Niklaus per se.' Mr. Baird's signature does not appear on these instruments.

During the progress of this case plaintiff filed some 72 interrogatories. These interrogatories were framed in collaboration with Mr. Baird, and in part contained questions auggested by Mr. Niklaus. Mr. Niklaus typed the interrogatories. He argued to the court the questions presented by the defendants' objections to the interrogatories.

A number of motions were filed in the case and argued to the court before Judges Polk and Spencer. Mr. Niklaus denied arguing these motions to Judge Polk. He did argue motions before Judge Spencer and at times when Mr. Baird was not in the courtroom. Mr. Niklaus made research of the legal questions that were involved in these motions. Mr. Niklaus argued a motion for the inspection of records.

He was asked and answered this question: 'Q. Now in connection with your preparation of this case have you made extensive research of law? A. I have.' Mr. Niklaus looked up the law and prepared several briefs. He prepared and submitted to the court a 'brief in support of plaintiff's motion to strike.' This contained a statement of issues, law, and an extensive argument. He likewise prepared a 'brief of plaintiff on discovery under statutory conditions.' This contains citations of decisions and argument. This brief was presented to the court by Mr. Niklaus in connection with oral argument.

Likewise before trial Mr. Niklaus submitted to the trial court a volume which he elected to call a 'compilation' of authorities on municipal contracts, many of which he related to the issues involved in this litigation. Mr. Niklaus made the research involved in the compilation and denominated it as his 'private property.'

Likewise, by oral motion to the court made by himself, Mr. Niklaus dismissed two of the 24 causes of action contained in the amended petition.

When the case came on for trial Mr. Baird appeared for the plaintiff and conducted the trial during the presentation of the case-in-chief.

During the defendants' case-in-chief Mr. Niklaus objected to the admission of certain exhibits 'as already in. Encumbering the record.' Again in two occasions when exhibits were offered he advised the court, 'No...