Rice v. Ashland Cnty.

• Decision Date: 01 April 1902
• Citation: 89 N.W. 908,114 Wis. 130
• Parties: RICE ET AL. v. ASHLAND COUNTY.
• Court: Wisconsin Supreme Court

114 Wis. 130

89 N.W. 908

RICE ET AL.

v.ASHLAND COUNTY.

Supreme Court of Wisconsin.

April 1, 1902.

Appeal from circuit court, Ashland county; John K. Parish, Judge.

Action by John H. Rice and others against Ashland county. From a judgment for plaintiffs, defendant appeals. Reversed.

Action for money had and received. The complaint is substantially as follows: August 7, 1886, the county clerk of Ashland county, in its behalf, received of plaintiffs John H. Rice and James E. Palmer, $17,065.73, as payment for the right, title and interest of such county in certain lands (particularly described), which sum said clerk in good faith represented was the full amount required to be paid in order to enable him to convey the county's interest in said lands. Rice and Palmer relied on such representations and accepted quitclaim deeds, executed in due form, purporting to transfer to them such interest. They acted for themselves in the transaction, and as trustees for other persons named as plaintiffs or who appear by their personal representatives. There was a resolution of the county board purporting to authorize said county clerk to sell the county's interest in said lands and convey the same to the purchasers by quitclaim deed, on certain specified conditions. By mistake the clerk did not demand, and Rice and Palmer did not pay, a sufficient sum to satisfy such conditions, by reason whereof the deeds they received were wholly void. The money was covered into the treasury and expended for legitimate county purposes before the demand for the return thereof hereafter mentioned. August 2, 1892, plaintiffs filed a claim against the county for such return, and at the same time delivered to the county clerk a deed in form retransferring the lands. The county board disallowed such claim and plaintiffs duly appealed from such action to the circuit court for Ashland county.

The county, by answer, put some, but not all, the material allegations aforesaid in issue, and pleaded in abatement the pendency of a former action commenced upon the same cause of action in the United States circuit court for the Western district of Wisconsin.

On the trial there was an objection to any evidence under the complaint, also a motion for leave to amend the answer, setting up the statute of limitations, which were overruled and the rulings duly excepted to. Plaintiffs' evidence established all the facts alleged in the complaint that have been referred to. On behalf of defendant there was evidence to the effect that plaintiffs, before the claim for a return of the money was filed, conveyed their right to some of the lands to third persons, receiving from the grantees, in the aggregate, $3,566. The cause was submitted without any definite evidence on the plea in abatement. At the close of the evidence the cause was submitted to the court for decision, on both sides, with the result that a verdict was directed in favor of plaintiffs for $17,065.73, the full amount of their claim, and legal interest thereon from the time the money was paid to the county clerk, to wit, August 7, 1886. A motion for a new trial was overruled and the ruling duly excepted to. Judgment was rendered upon the verdict in plaintiffs' favor.

After judgment defendant's counsel moved to set the same aside and for a new trial because of newly discovered evidence. Such evidence was to the effect that Rice and Palmer paid their money to the county knowing that they were entering upon a speculating venture and after being advised by the county clerk that in his judgment, if the deeds he delivered to them should turn out to be void, they could not recover their money; that one Brown represented plaintiffs in dealing with the clerk; that he and the clerk acted together in figuring out the amount that should be paid to the county to comply with the resolution under which the clerk assumed to have authority to make the deeds; that the clerk did not consult with the county board at all in the transaction, but acted entirely upon his own judgment as to what he had authority to do. Further new evidence was claimed to be in the possession of appellant's counsel establishing the plea in abatement. The affidavits in support of the motion set forth in detail the reasons why the so-called new evidence was not produced upon the trial. As to the evidence in support of the plea in abatement, it was claimed that defendant's counsel, several days after the commencement of the term of court at which the cause was tried, and shortly before it was called for trial, communicated with the clerk of the United States court, requesting a copy of the record in the alleged pending action, and that such request was not promptly complied with, the result being that the papers did not reach counsel until three days after the trial was concluded. The motion was denied.This appeal is from the judgment as well as from the order entered upon the motion.

A. P. Haagenson, Dist. Atty. (R Sleight, of of counsel), for appellant.

Tomkins & Tomkins and Lamoreux & Shea, for respondents.

MARSHALL, J. (after stating the facts).

The various assignments of error will be considered in their order.

1. Did the court err in refusing to allow defendant to amend its answer, setting up the statute of limitations? The application for leave to amend was addressed to the sound discretion of the court. Whereatt v. Worth, 108 Wis. 291, 84 N. W. 441, 81 Am. St. Rep. 899. We are unable to see that such discretion was abused. True, there were circumstances palliating the omission to set up the defense of the statute of limitations when the answer was interposed. Nevertheless, all the facts were then known to appellant's officers, or might have been known to them by the exercise of ordinary diligence, that were known when the application for leave to amend was made, except as to whether plaintiffs would be able to bring their alleged cause of action to a hearing. We are unable to see how that circumstance excused setting up the defense of the statute of limitations when the opportunity therefor existed, so as to warrant us in saying that it was an abuse of judicial power not to relieve appellant from the default.

A complete answer to the assignment of error, however, exists in the fact, which appears clearly, that defendant was not prejudiced by the ruling complained of. The money was paid to the county August 6, 1886, at the earliest. When it was actually applied to the use of the county does not definitely appear, but it is reasonably certain that such application did not take place till some time after the clerk received the money. Plaintiffs' cause of action for money had and received did not mature till the money was so used. The clerk had no right to receive the money at all on behalf of the county. If it had not been made a part of the public funds of the county as indicated, plaintiffs' cause of action for a return thereof would have been against the county clerk if against any one. Thompson v. Town of Elton, 109 Wis. 589, 85 N. W. 425;Smith v. Board, 44 Wis. 686. It should be noted that in the last case cited it was held that the officer receiving the money, only, was liable, notwithstanding it had been turned into the county treasury and become a part of the county funds. It did not appear, however, that the money had been actually used by the county for its legitimate purposes. Further, the transaction in that case was one which the county board had no power to authorize. Ryan, C. J., dissented from the opinion of the court, holding that the county was liable to refund the money solely because of its having become a part of the county funds, regardless of the doctrine of ultra vires. The rule announced by the court has never been extended in this state to a case where authority to do the act involved might have been given and the proceeds of the transaction were actually used for legitimate county purposes, taking the place of other money accumulated or that would otherwise have been required to be accumulated in the public treasury by legal means. Plaintiffs' claim was presented to the county board for consideration August 2, 1892. Taking the most favorable view of the evidence for appellant that it will reasonably admit of, that was within six years of the time the cause of action accrued. The statute does not commence to run upon a claim till such time as it might be enforced by action (section 4249, Rev. St. 1898); and the presentation of a claim to a county board for allowance, where the law requires that method of commencing proceedings against a county, is the commencement of an action within the meaning of the statute of limitations (section 4242, Id.). From this it will be seen that, had the application for leave to amend been granted, it would not have affected the final result.

2. Did the court err in overruling the objection to any evidence under the complaint, or in denying appellant's motion for the direction of a verdict, or in granting plaintiffs' motion for a verdict? Those three propositions, as the record stands, may be considered together. If the complaint states a cause of action, since the evidence establishes the essential facts therein alleged, and the first proposition must be answered in plaintiffs' favor, all must be so answered. It is considered that the allegations of the complaint satisfy all the essentials of the doctrine upon which the liability was sustained in Thompson v. Town of Elton, supra. We cannot profitably add to what was there said in regard to the doctrine involved. The law is deemed to be firmly established that if an officer of a public corporation, assuming to have authority to act in its...