Olson v. Donnelly

Decision Date26 November 1940
Docket NumberNo. 6698.,6698.
Citation294 N.W. 666,70 N.D. 370
PartiesOLSON et al. v. DONNELLY et al.
CourtNorth Dakota Supreme Court

OPINION TEXT STARTS HERE

Syllabus by the Court.

1. Where a proceeding or action is brought in the district court of a county in this state and a district judge from another judicial district is called to hear and determine the issue and orders judgment thereon, the judgment entered is the judgment of the district court in which this judge sits, and not of the district court of any county within his own judicial district.

2. A judgment rendered by a court of general jurisdiction, having jurisdiction of the parties and subject-matter, imports absolute verity. As long as it stands, it can not be attacked collaterally by any of the parties thereto, or those in privity with them; and as long as it remains in force, neither party can maintain an action against the judgment on the ground that the judgment was obtained by fraud and deception. Tuttle v. Tuttle, 48 N. D. 10, 181 N. W. 898, followed.

3. The county commissioners of a county have charge of the fiscal matters of the county, and as such are managers of a County Fair established by the county; and any judgment rendered in an action or proceeding brought by them is binding upon the taxpayers of the county unless set aside or reversed on a motion or in some proceeding in that case.

Appeal from District Court, Ward County; P. G. Swenson, Judge.

Action by E. N. Olson and others against E. A. Donnelly and others, individually and as County Commissioners of Ward County, N. D., and others to set aside a judgment of the District Court of Ward County. From an adverse judgment, the plaintiffs appeal.

Judgment affirmed.

Paul Campbell, of Minot, for appellants.

Roy. A. Ilvedson, State's Atty., B. A. Dickinson, Asst. State's Atty., and Halvor L. Halvorson, all of Minot, for respondents.

BURR, Judge.

This is an appeal from a judgment sustaining a demurrer to the complaint.

The complaint shows plaintiffs are taxpayers of Ward County, and the defendants are as set forth in the title; that for many years the County of Ward maintained what was known as “The Ward County Fair, organized under the provisions of Chapter 102 of the Session Laws of 1919; that from the years 1921 to 1937, the county budget estimates were made and adopted on behalf of the Fair and taxes levied for its support; that illegal claims and accounts had been audited and allowed, excessive expenditures incurred, and illegal warrants issued for the purpose of operating said Fair; that on February 14, 1938, the Board of County Commissioners of Ward County, at that time comprising defendants Donnelly, Yuly, and Pierson, and the defendants Ilvedson, Dickinson, Halvorson and others, as petitioners began a mandamus proceeding in the district court of Ward County against Fred M. Brey, one of the defendants here, requiring him “to set up to the credit of the Fair Fund a sum of $33,850.76, and to sign Warrants on bills and accounts against said Fair Fund approved by the Board of County Commissioners; and * * * well knowing that there was no cash in the hands of the Treasurer of Ward County against which to issue Warrants, and that there was no cash in the hands of the Treasurer belonging to said Fund * * * did falsely and fraudulently represent to the said Court that there was due and owing to the said Fair Fund a sum of $33,850.76”, which had been collected and received for the use and benefit of the Fair; that the petition alleged the respondent in that action (Brey) had “wrongfully and unlawfully diverted the same to other funds, and expended the same for other purposes”, and made other false and fraudulent representations so that these aforenamed defendants as petitioners “secured from this Court (the District Court of Ward County), and this Court caused to be made and given on April 19th, 1938 a Judgment of this Court, adjudging among other things that a Writ of Mandamus issue and provide for the setting up of the fund” described, and that warrants be issued against it, and ordering and directing the said Fred M. Brey to replenish the fund from the taxes as collected to the extent of the balance in the Fair Fund, and “commanding the County Auditor to issue and sign warrants for payment of the accounts and claims against the Fair referred to aforesaid, said accounts and claims being legal obligations properly chargeable against said fund, such being the duty of the County Auditor as evidenced by the law and facts found in this case.”

The complaint further shows that a writ was issued commanding and directing the County Auditor, the defendant Fred M. Brey, “to do and perform the matters and things in the said Judgment as aforesaid by him adjudged and directed to be done and performed; and that the Defendants herein named, attempting to and about to enforce the said Judgment, have caused to be issued out of this Court and served on the Defendant Brey an Order of this Court directing and requiring him to show cause before this Court at a time and place set, why he, the said Brey, should not be adjudged and held in contempt of this Court by reason of his failure, neglect and refusal to do and perform the matters and things as in the said Judgment and the said Writ ordered, directed and commanded to be by him done and performed.”

The complaint alleges that the judgment, ordering the issuance of the writ of mandamus in the action described, “is contrary to law and fact, is and constitutes and operates as a fraud upon these plaintiffs and the Taxpayers of Ward County, was made and entered by the Court under a mistake of Fact and Law, and by reason of the false and fraudulent representations made by the relators or petitioners therein, as set forth above, and is and should be held to be fraudulent, null and void, and should be by this Court in all things vacated and set aside, and the Defendants above named restrained and enjoined from enforcing or attempting to enforce the same, and from doing or performing the matters and things therein and thereby by the Defendant Fred M. Brey required and directed to be performed.”

The complaint shows that the judgment in the mandamus proceedings was entered on April 19, 1938, and served upon the defendant Brey on or about that time; that the plaintiffs in this case did not know of the institution of said action “until long after May 1939, and that all of the plaintiffs prior to the commencement of this action had at all times assumed and believed in the good faith of these county officials and relied upon them to properly perform their duties. The complaint prays that the judgment in the mandamus matter be declared null and void and the defendants herein be enjoined from doing anything ordered in the judgment.

This action was commenced on or about May 3, 1940, and the original complaint therein was served on May 7, 1940. A demurrer to that complaint was interposed and sustained. The plaintiffs thereupon amended the complaint to set forth as hereinbefore stated, and again a demurrer was interposed.

This demurrer sets forth five grounds:

“I. That the Court has no jurisdiction of the subject of the action.

II. That the plaintiffs have not the legal capacity to sue.

III. That there is a defect of parties defendant.

IV. That several purported causes of action have been improperly united.

V. That the Complaint does not state facts sufficient to constitute a cause of action.”

The trial court sustained the demurrer and ordered judgment to that effect. Judgment was accordingly entered, and the action dismissed.

[1] There is no merit in the first ground of demurrer. This is an action to set aside a judgment of the District Court of Ward County; and if such an action may be maintained, it is very clear the jurisdiction is in the District Court of Ward County. Some confusion arises from the fact that in the proceedings for the writ of mandamus, the Hon. C. W. Buttz, Judge of the Second Judicial District, sat in the place of one of the judges of the District Court of Ward County and determined the issues. He heard the evidence, and made and entered the order requiring the issuance of the writ. While doing this, he was acting judge of the District Court of Ward County. It was not the personal act of Judge Buttz; it was the act of the presiding judge of the District Court of Ward County. In this case at bar, Judge P. G. Swenson of the First Judicial District sat as trial judge; but in so doing, he was the acting judge of the District Court of Ward County.

To show want of jurisdiction, the defendants cite Enderlin State Bank v. Jennings, 4 N.D. 228, 59 N.W. 1058, 26 L.R.A. 593;Missouri Slope Land & Investment Co. v. Hastead, 27 N.D. 591, 147 N.W. 643;McGinnity v. Dowd, 47 N.D. 554, 182 N.W. 938;Crowley v. Davis et al., 37 Cal. 268;Kaufer v. Ford, 100 Minn. 49, 110 N.W. 364;Marvin v. Weider, 31 Neb. 774, 48 N.W. 825;State ex rel. Mannix v. District Court, etc., 51 Mont. 310, 152 P. 753; and Stein v. Benedict et al., 83 Wis. 603,

None of these cases is in point. In the first case cited we held that one judge “has no power to review, on the same facts, the decision of another judge, of co-ordinate jurisdiction.” But the matter arose on a motion in the same case, the motion had already been determined, and the decision was final.

The Missouri Slope Land & Investment Co. case arose out of “a situation wherein a judge in an adjoining district assumed to exercise jurisdiction in a cause pending in another district” (27 N.D. 597, 147 N.W. 644); and we held that “Whether right or wrong, such decision could not be set aside and held for naught * * * especially upon a mere collateral attack.” 27 N.D. 599, 147 N.W. 645. It will be noted also that all matters in controversy in that case were in the same proceeding.

In McGinnity v. Dowd, supra an action was brought to cancel a judgment which had been in existence for ten years, the theory being that the judgment had been...

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9 cases
  • Hamilton v. Hamilton
    • United States
    • North Dakota Supreme Court
    • July 28, 1987
    ...that very purpose, in the same action and in the same court; ..." 49 C.J.S. Judgments § 408(a) (1947 & Supp. 1986), quoted in Olson v. Donnelly, 294 N.W. at 669. "Where the element of fraud or mistake is involved in the issue it is a general rule that the attack is direct." 49 C.J.S. Judgme......
  • Jensen v. Schwartz
    • United States
    • North Dakota Supreme Court
    • May 29, 1958
    ...by any of the parties thereto, or those in privity with them.' See also Bartell v. Morken, N.D., 65 N.W.2d 270; Olson v. Donnelly, 70 N.D. 370, 294 N.W. 666; Smith v. Mountrail County, N.D., 70 N.W.2d 518; 31 Am.Jur. Judgments, p. 199, 42 Am.Jur. Process, p. We have, therefore, come to the ......
  • Schaff v. Schaff, 890016
    • United States
    • North Dakota Supreme Court
    • September 26, 1989
    ...with an independent purpose that contemplates some other relief or result is a collateral attack on the judgment. Olson v. Donnelly, 70 N.D. 370, 378, 294 N.W. 666, 669 (1940). " 'A direct attack on a judgment is an attempt to avoid or correct it in some manner provided by law, in a proceed......
  • Bartell v. Morken
    • United States
    • North Dakota Supreme Court
    • July 1, 1954
    ...district court is a court of general jurisdiction and it is presumed that its judgments are regularly and validly entered. Olson v. Donnelly, 70 N.D. 370, 294 N.W. 666. However, if from the record upon which the judgment is based it affirmatively appears that the court had no jurisdiction o......
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