Pierson v. Minnehaha County

• Decision Date: 17 January 1912
• Citation: 134 N.W. 212,28 S.D. 534
• Parties: PIERSON et al. v. MINNEHAHA COUNTY.
• Court: South Dakota Supreme Court

134 N.W. 212

28 S.D. 534

PIERSON et al. v. MINNEHAHA COUNTY.

Supreme Court of South Dakota

January 17, 1912

Appeal from Circuit Court, Minnehaha County; Frank B. Smith, Judge.

Action by E. E. Pierson and another against Minnehaha County. From an order appointing a referee, defendant appeals. Reversed.

See also, 128 N.W. 616.

Martin Bergh, State's Atty. (G. J. Danforth and Bailey & Voorhees, of counsel), for appellant.

Sam H Wright, for respondents.

CORSON J.

This is an appeal by the defendant from an order of the circuit court of Minnehaha county made the 1st day of June, 1911, in which it is ordered and adjudged "that Arthur R. Brown be and is hereby appointed referee to try all of the issues in said action both of fact and of law and to report a finding and judgment thereon to the court." The assignments of error are as follows: "The defendant assigns as error the ruling of the court in making the order overruling the defendant's demurrer, and the ruling of the court in making the compulsory order of reference." It will be necessary for the determination of the correctness of the order of the circuit court to briefly state the nature of the action and the proceedings therein. It is alleged in the complaint, in substance, that the plaintiffs did on or about the 13th day of May, 1909, apply to the said county, through its board of commissioners, to undertake to investigate the omission by various and sundry taxpayers of said county to list their personal property under the provisions of sections 2074 and 2075 of the Political Code of this state, and said board did pass and have entered upon the records of said board a resolution authorizing the plaintiffs to make such investigation and report to the said board, and as compensation therefor should receive one-half of the penalty recovered on such omitted taxes; that these plaintiffs, pursuant to, and in consequence of said employment, and during said month of May 1909, did commence the work involved in and covered by their said employment; that on the 17th day of July, 1909, and while these plaintiffs were engaged in their efforts to fully investigate and report to the said board, and had in fact filed with the county auditor of said county their report showing the nonrendition by the several taxpayers for the years beginning with 1900 and ending with 1909 of their taxable mortgages, a copy of which is attached and marked "Exhibit A," which showed the several nonpaying taxpayers, the several amounts which they were respectively chargeable with on account of the nonpayment of taxes, with several statements therein set forth, and the names of the persons who were chargeable thereunder, which is made a part of the complaint; that, without any reason therefor, the said board of county commissioners did on the 17th day of July, 1909, pass and have spread upon the records of said board a resolution, rescission, and revocation of the said contract; that, when the said defendant revoked the said contract and discharged these plaintiffs, they were engaged in ascertaining the other personal taxable property, which the several persons chargeable therewith, in addition to the real estate mortgages mentioned in Exhibit A, had omitted for several years, beginning with the year 1900 and ending with 1909, and that, in consequence of their discharge and dismissal from their said investigation as thereinbefore set forth in the said resolution dated the 17th day of July, these plaintiffs did not further pursue their said line of investigation, their right to do so having been terminated as before stated; that the total amount of the real estate mortgages discovered by these plaintiffs which had been omitted from the tax lists, legally assessable against such owners of said mortgages, the years of such omissions, and other data relative thereto, are set out in Exhibit A, made a part of the complaint, specifying the amounts for the various years. It is then alleged that there was not less than $500,000 per year during all the years mentioned of nonlisted taxable personal property other than real estate mortgages, as shown in Exhibit A, omitted from the said taxes; that the plaintiffs performed their work and duties under said contract; that by reason thereof they have earned $125,000, the same being based and predicated upon the tax levies for each of said several years; that a much greater amount could have been collected from the said fraudulently omitted to plaintiffs and receivable by them under said contract had the said county, through its board of commissioners, done its duty; that in consequence thereof these plaintiffs have sustained damage in that amount, no part of which has been paid, although a due demand therefor has been made; that plaintiffs have at all times been able, ready, and willing to carry out and perform their part of said contract, but that said board of commissioners has failed and refused to permit plaintiffs so to do, and thereby violated the contract; that the plaintiffs duly presented their account to said board of commissioners, but that said board had neglected to act upon said claim. Wherefore the plaintiffs demand judgment against the said defendant for the said sum of $125,000, together with costs and disbursements. Annexed to the complaint is Exhibit A, containing 316 pages, of which a copy of the first page is given in the abstract, and it appears in the affidavit hereinafter referred to that Exhibit A contains 15,000 items.

To this complaint a demurrer was interposed by the defendant on the ground that the complaint does not state facts sufficient to constitute a cause of action, which was overruled by the circuit court, from which order overruling the same the defendant appealed to this court and also filed an answer to the complaint. The appeal from the order overruling the demurrer was dismissed by this court on the ground that the defendant by filing an answer had waived its right of appeal. 128 N.W. 616. The defendant thereupon filed an amended answer not necessary to be set out in this opinion.

It is contended by the appellant that the demurrer should have been sustained by the trial court, and that therefore an order of reference was unauthorized and void. Appellant further contended that, assuming that a good cause of action was stated in the complaint, the items of alleged damage stated therein did not constitute such an account as the court is authorized to refer against the objection of the defendant under section 282 of the Code of Civil Procedure of this state.

Counsel for the respondent, as to the first proposition, insisted that the order of the trial court overruling the demurrer to the complaint, from which no valid appeal was taken within 60 days after the entry of the order overruling the demurrer, is a final adjudication as to the sufficiency of the complaint, and that its decision cannot now be questioned or controverted in this case for the reason that an appeal from the order overruling the demurrer was taken to this court and the appeal dismissed, on motion of respondents' counsel, on the ground that subsequent to taking the appeal an answer was filed in the action.

We are of the opinion that the contention of the plaintiffs is untenable, as the order overruling the demurrer was subject to review by this court upon an appeal from the judgment or from any other order in which the insufficiency of the complaint to state a cause of action might be properly challenged. The effect of the decision of this court dismissing the appeal from the order overruling the demurrer (128 N.W. 616), on the ground that an answer had been filed, was that an appeal from the order overruling the demurrer could not be taken to this court after an answer had been filed in the action. But this court did not decide, nor intend to decide, that the decision of the trial court overruling the demurrer was such a final determination as to the sufficiency of the complaint as to preclude this court, upon a proper appeal and a proper assignment of error, from reviewing such order.

In 6 Encyclopedia of Pleading & Practice, 363, the law upon the subject of demurrer is thus stated: "Where a demurrer to a pleading is overruled, and the demurrant thereupon pleads over, the demurrer is waived by pleading over, except in jurisdictions where statutes provide to the contrary. So, also, it is a general rule that any errors committed in overruling a demurrer are waived. But there are some well-recognized exceptions to the rule, one of which is error in overruling a demurrer to a complaint which does not state a cause of action, and the other, error in overruling a demurrer for want of jurisdiction of the action"-citing a number of cases, among which are the following: Chapline v. Robertson, 44 Ark. 202; Fordyce v. Merrill, 49 Ark. 277, 5 S.W. 329; Thalheimer v. Crow, 13 Colo. 397, 22 P. 779; Teal v. Walker, 111 U.S. 242, 4 S.Ct. 420, 28 L.Ed. 415.

In Teal v. Walker, supra, the learned Supreme Court of the United States, speaking by Mr. Justice Woods, says: "The writ of error is not taken to reverse the judgment of the court upon the demurrer to the complaint, for that was not a final judgment, but to reverse the judgment rendered upon the verdict of the jury. The error, if it be an error, of overruling the demurrer, could have been reviewed on motion in arrest of judgment, and is open to review upon this writ of error. When the declaration fails to state a cause of action, and clearly shows that upon the case as stated the plaintiff cannot recover, and the demurrer of the defendant thereto is overruled, he may answer upon leave and go to trial, without losing the right to have the judgment upon the verdict reviewed for the error in overruling the demurrer. ...