Phillips v. Brandt

• Decision Date: 30 June 1950
• Docket Number: No. 35121,35121
• Parties: , 16 A.L.R.2d 1048 PHILLIPS v. BRANDT, Assistant City Comptroller, et al.
• Court: Minnesota Supreme Court

Page 285

43 N.W.2d 285

231 Minn. 423, 16 A.L.R.2d 1048

PHILLIPS v. BRANDT, Assistant City Comptroller, et al.

No. 35121.

Supreme Court of Minnesota.

June 30, 1950.

Cronin, Mitchell & Spooner, Minneapolis, for appellant.

John F. Bonner, City Attorney, Carsten L. Jacobson and Palmer B. Rasmussen, Assistant City Attorneys, all of Minneapolis, for respondents.

Syllabus by the Court

1. Order which denied motion to substitute representative plaintiffs for a disqualified representative plaintiff in taxpayers' suit, made subsequent to court's order for judgment in plaintiff's favor, which in effect determined the action and prevented entry of such judgment, Held appealable under M.S.A. § 605.09(5).

2. Section 605.09(5) construed and Held to relate to orders which prevent a specific judgment already ordered even though a judgment of dismissal in favor of opposite party might be entered and appeal taken therefrom.

3. Motion to substitute plaintiffs who are within the original classification of those on whose behalf representative suit was instituted Held not the same as motion to bring in additional parties.

4. Where representative plaintiff taxpayer has sustained or will sustain injury by virtue of invalid expenditure of public funds, Held that such plaintiff has sufficient capacity and interest to institute and maintain action to restrain such action.

5. Action to restrain unlawful payment of salary to civil service position under Minneapolis charter vacant at the time Held not an action to try title to public office.

6. In representative suit, trial court has inherent discretionary power to substitute new plaintiff who is within the classification of those on whose behalf suit was instituted, where original representative plaintiff has become disqualified subsequent to trial and order for judgment. Where court fails to exercise such power in the belief that it did not possess it, case must be remanded for the exercise of such discretion by the court.

7. Where action relates to the performance of continuing duty pertaining to a public office, irrespective of the incumbent, it does not abate upon expiration of term of original officeholder, named as defendant therein, and his successor may and should be substituted as such defendant so as to be bound by the judgment in his official capacity.

8. Unnecessary to determine correctness of trial court's order authorizing supplemental answers or plaintiff's right to appeal therefrom.

THOMAS GALLAGHER, Justice.

Action by George P. Phillips, plaintiff, as a resident taxpayer of the city of Minneapolis in behalf of all other taxpayers therein, against C. A. Brandt, acting city comptroller, John F. Bonner, city attorney, Carsten L. Jacobson, assistant city attorney, and Gladys E. Miller, city treasurer, all of the city of Minneapolis, to permanently enjoin defendants from approving city payrolls, or countersigning any city warrants for payments of salary by virtue thereof to defendant Carsten L. Jacobson in excess of the sum of $455 per month, his salary as assistant city attorney; to enjoin defendant Carsten L. Jacobson from performing the duties of First assistant city attorney, a position distinct from that of assistant city attorney; and to enjoin defendant John F. Bonner from assigning to defendant Carsten L. Jacobson the duties of First assistant city attorney.

Following the trial of the action, the court on May 7, 1949, made findings and conclusions and ordered judgment in favor of plaintiff in substance as follows:

That under the city charter and rules of the civil service commission enacted pursuant thereto, the position of first assistant city attorney was then and had been vacant since June 6, 1947.

That on August 29, 1947, the city council had assigned the duties of such position to defendant Carsten L. Jacobson, and had authorized payment to him of the salary of such position; that said Carsten L. Jacobson was then assistant city attorney and had not been certified by the civil service commission to the position of first assistant city attorney, which was separate and distinct from that of assistant city attorney.

That neither the city attorney nor the city council had power to fill said position, and that their acts in assigning or attempting to assign the duties thereof to defendant and authorizing the payment of the salary thereof to him were invalid.

That proper procedure required the city attorney to request authorization from the city council to requisition the civil service commission for certification of an eligible person to the position of first assistant city attorney, and that such proceedings had not been taken.

That plaintiff, as a taxpayer, was entitled to bring an action to enjoin or restrain defendants from disbursing public funds in payment of salary to defendant Carsten L. Jacobson in excess of the amount he was entitled to receive as assistant city attorney.

Judgment based on such findings was ordered. Defendants' motion for amended findings or a new trial was thereafter denied.

Subsequent to the findings, conclusions, and order for judgment, plaintiff, George P. Phillips, departed permanently from Minneapolis, and defendant C. A. Brandt was succeeded in the position of city comptroller by Al Hansen, who had been duly elected thereto.

Defendants other than Brandt thereupon moved for leave to file a supplemental answer alleging the foregoing facts and praying for a dismissal of the action by virtue of the termination of Phillips' interest therein. At the same time, the attorneys for Phillips moved for an order authorizing Clifford E. Larson and Ralph L. Anderson, who at all material times were property owners and taxpayers of the city of Minneapolis, to be substituted as plaintiffs in the action, and substituting Al Hansen, city comptroller, as defendant in lieu of C. A. Brandt, acting city comptroller. Defendant C. A. Brandt moved for leave to file a supplemental answer setting forth the termination of his position as acting city comptroller.

The respective motions of these defendants were granted, and the motions of Clifford E. Larson and Ralph L. Anderson were denied. In a memorandum attached to its order on such motions, the trial court set forth that in its opinion it was without power, inherent or otherwise, to grant the latter motions. Therein it stated: 'No authority has been submitted, nor has the Court been able to find any whereby third parties, strangers to the action, even though they may be taxpayers can be substituted.'

The trial court pointed out that an immediate appeal might be taken if defendants would stipulate for the substitution of the new plaintiffs, but this defendants refused to do.

This appeal is by Clifford E. Larson and Ralph L. Anderson from the order denying their motion to be substituted as plaintiffs. It is their contention that the original action was brought on behalf of all taxpayers to restrain the illegal expenditures of public funds, and that they, as taxpayers, had the right to be substituted as plaintiffs following the disqualification of the original plaintiff after trial; that they had the right to have substituted as a party defendant the successor in office to C. A. Brandt, the former acting city comptroller; and that the court possessed the power, inherent and by virtue of statute, to make its order to such effect.

Defendants assert that (1) the order appealed from is not an appealable order; (2) the original plaintiff, George P. Phillips, having no interest in the action distinct from that of other taxpayers, was an improper party plaintiff in the first instance, and that defendants' motion for judgment on the pleadings because thereof should have been granted before trial; (3) the trial court was without authority, statutory or otherwise, to make an order substituting Clifford E. Larson and Ralph L. Anderson as plaintiffs in this action; and (4) if such authority existed, its exercise was within the discretion of the trial court, and that, in the absence of abuse thereof, this court should not interfere therewith.

1. We believe that the order which denied the motion of appellants Larson and Anderson for substitution of their names as representative plaintiffs in this action is appealable under M.S.A. § 605.09(5), which provides:

'An appeal may be taken * * *:

'(5) From an order which, in effect, determines the action, and prevents a judgment from which an appeal might be taken;'

The purpose of the motion, as indicated by its language, is to substitute the names of Larson and Anderson for that of Phillips as representative plaintiffs, in order that 'final judgment may be rendered thereon for the protection of the rights of the taxpayers of the city of Minneapolis.' Phillips' disqualification and departure would suspend the proceedings indefinitely or permit defendants to obtain judgment for dismissal, unless the court ordered other names from within the class for which the action was instituted to be substituted for his. The denial of the motion therefor prevented Larson and Anderson, already parties plaintiff in the action, although unnamed, and all other taxpayers for whose benefit the action was instituted, from entering the judgment which had been ordered in their favor. Under such circumstances, it would seem clear that the order denying appellants' motion is appealable under § 605.09(5).

2. Defendants assert that under § 605.09(5) only orders which prevent Any judgment in an action may be appealed, and that, since the order here does not prevent a Judgment of dismissal in favor of defendants, from which an appeal may be taken, if cannot be said to determine the action and prevent a judgment so as to be appealable under this section.

We do not agree with this construction. We feel that an order which finally determines the action and prevents entry of a judgment already ordered in favor of a party thereto falls within the classification set forth in §...