Pima County v. Grossetta

• Decision Date: 22 December 1939
• Docket Number: Civil 4128
• Citation: 54 Ariz. 530,97 P.2d 538
• Parties: PIMA COUNTY, a Body Politic and Corporate of the State of Arizona, Appellant, v. WARREN A. GROSSETTA, R. H. MARTIN and J. B. MEAD, Appellees
• Court: Arizona Supreme Court

97 P.2d 538

54 Ariz. 530

PIMA COUNTY, a Body Politic and Corporate of the State of Arizona, Appellant, v. WARREN A. GROSSETTA, R. H. MARTIN and J. B. MEAD, Appellees

Civil No. 4128

Supreme Court of Arizona

December 22, 1939

APPEAL from a judgment of the Superior Court of the County of Pima. William G. Hall, Judge. Judgment affirmed.

Mr. J Mercer Johnson, County Attorney, for Appellant.

Mr Joseph B. Judge, for Appellees.

Messrs Houston & Dodd, Amici Curiae.

OPINION

LOCKWOOD, J.

This is an action by Warren A. Grossetta, R. H. Martin and J. B. Mead, hereinafter called plaintiffs, against Pima County, a political subdivision of the state of Arizona, Elliott Dunseath, Herbert F. Krucker, Archie R. Conner, Gerald Jones, Clarence Houston and V. Clare Dodd, well-known members of the bar of the state, and J. Mercer Johnson in three capacities, individually, as county attorney-elect of Pima County, and as representative of the taxpayers of Pima County, hereinafter called defendants, with the state of Arizona intervening through Joe Conway, its attorney general.

The plaintiffs prayed for a declaratory judgment defining the rights, status and legal relations of all of the parties to certain contracts set up in the complaint, and a declaratory judgment as to whether the plaintiffs, as the board of supervisors of Pima County, were authorized and had the power to employ legal counsel to assist the county attorney in certain civil actions in which the county was, or might be, a party.

After various motions, demurrers and dilatory pleadings of almost every conceivable nature, in the course of which J. Mercer Johnson, in all his capacities, upon his motion was dismissed as defendant, the case was heard on its merits before the court sitting without a jury, all parties being represented, and a judgment was finally rendered holding all the contracts referred to in the complaint to be valid, and, therefore, necessarily holding that the county of Pima did have the authority to employ special counsel in these particular legal matters. Thereafter Pima County appealed from the judgment, none of the parties defendant being made parties to the appeal.

The case may be better understood by a statement of its background which, in substance, is agreed by the parties to be as follows: Plaintiffs, during the years 1937 and 1938, comprised the board of supervisors of Pima County, Arizona. During the month of March, 1937, they entered into a contract with Elliott Dunseath and Herbert F. Krucker, two of the defendants, for the purpose of collecting any judgments for jury fees which were of record in the office of the clerk of the superior court of Pima County, the fee of the attorneys to be contingent and payable only out of any recovery. On January 14, 1938, the plaintiffs entered into a contract with Clarence Houston and V. Clare Dodd, whereby the latter agreed to reopen certain cases in which Pima County was interested, and known as the Griffith cases, and prosecute them to a conclusion, receiving for their services twenty-five per cent. of the amount collected for Pima County by such actions, the county to pay the expense of an appeal to the Supreme Court of Arizona, if one was necessary, not exceeding $250. During the month of March, 1938, the plaintiffs employed Archie Conner and Gerald Jones to advise them as to the right of Pima County to collect certain taxes which plaintiffs believed to be due the county from the Valley National Bank, and on May 4th employed them to bring an action for such taxes, the attorneys' fees not to exceed a maximum sum of $5,000, and an expense not to exceed $2,000, as the case might develop.

All of the counsel so employed commenced performing their parts of the contracts for legal services above referred to, and before this suit was filed Dunseath and Krucker had collected a large amount of jury fees, and were paid for such collection out of the money collected the sum of $771.80. Conner and Jones were paid $150 for their advice given before the contract of May 4th, but Houston and Dodd had not been paid anything on their contract. During all this time Joseph Judge was the county attorney of Pima County, and all the contracts had been entered into with his full approval and consent.

During the primary campaign of 1938, the advisability and validity of these contracts were brought into question, and some doubts having arisen in plaintiffs' minds as to their rights and liabilities on account of such contracts, they ordered Judge to file this action seeking the declaratory judgments as aforesaid, which was done on November 17, 1938. At the inception of the action, all of the parties to the suit, except J. Mercer Johnson, were anxious that judgment be rendered declaring the contracts valid, the action at that time being one of the well-known "friendly" suits where all the parties, although apparently opposed in interest, are anxious for the same judgment. On January 1, 1939, the county attorney, Joseph Judge, who had advised the board of supervisors when the contracts were made, retired from office. "Now there arose up a new king over Egypt, which knew not Joseph," (Exodus 1:8), to-wit, J. Mercer Johnson, the newly elected county attorney, and from this time on the friendly contest was anything but. The attorney general of the state, believing that his rights had been infringed upon, also hurled himself into the fray as intervener, and the various motions, demurrers and other pleadings became so numerous and involved that the real issues of the original action were almost lost sight of.

We consider first the motion to dismiss the appeal of Houston and Dodd, who were permitted by the court to appear as amici curiae since they represented no party to the appeal. They urge upon this point that they were parties to the proceeding in the court below and vitally interested therein as beneficiaries under one of the contracts which is attacked in the action; that the rule of law is that when an appeal is taken all parties to the action who are interested in maintaining the validity of the judgment in the lower court must be made parties on the appeal or it will be dismissed. In support of this, they cite a number of cases, among them being Hurst v. Lakin, 13 Ariz. 328, 114 P. 950; Lisitzky v. Brady, 38 Ariz. 337, 300 P. 177; Neil v. Chrisman, 26 Ariz. 566, 229 P. 92; Smith v. Stilwell, 9 Ariz. 226, 80 P. 333.

Counsel for Pima County admit the general rule but urge that so far as amici curiae are concerned, the question of their rights is moot, since in the very recent case of State v. Griffith, ante, p. 436, 96 P.2d 752, decided December 11, 1939, we have held that Pima County and the state of Arizona take nothing by their action, and, therefore, regardless of the validity or invalidity or their contract, they can recover nothing and are not interested in the result of this appeal. We think the objection is well founded. The interest of Houston and Dodd in this case, since the decision in State v. Griffith, supra, is academic only, and they are not necessary parties to the appeal. The motion to dismiss will, therefore, be denied.

We consider next the procedural questions raised in the lower court. The first is that it appears that plaintiff Warren Grossetta had ceased to be a member of the board of supervisors of Pima County shortly after the filing of this action, and that Pima County's plea in abatement on that ground should have been granted and the newly elected supervisor substituted. We think this objection is not well taken. Plaintiffs did not bring this suit in their official capacities as supervisors of Pima County, but as individuals who, because of their actions as such supervisors, might be under a personal liability, by reason of section 790, Revised Code of 1928, which imposes certain liabilities on members of a board of supervisors who order money paid out of the county treasury without authority of law. This liability against plaintiff Grossetta would continue, even though he had left office, and we think there was no reason why his successor in office, who had not been a party to the contracts, should be substituted for him.

The next objection raised is that the judgment rendered would not finally terminate any uncertainty or controversy alleged to exist by reason of the contracts under consideration, and that it would not be binding upon any of the taxpayers of Pima County. A declaratory judgment in this case would determine either that the contracts in question were authorized to be made by plaintiffs and they were, therefore, free from liability thereunder, or that they were not authorized, in which case any taxpayer might bring an...