Schenck v. School District No. 34 of The County of Hamilton
| Decision Date | 07 April 1917 |
| Docket Number | 21,162 |
| Citation | 100 Kan. 389,164 P. 169 |
| Parties | EUGENE SCHENCK, sr., Appellant, v. SCHOOL DISTRICT NO. 34 OF THE COUNTY OF HAMILTON et al., Appellees |
| Court | Kansas Supreme Court |
Decided January, 1917.
Appeal from Hamilton district court; GEORGE J. DOWNER, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
INJUNCTION--Taxation Judgments--Collateral Attack. A judgment rendered by a court having jurisdiction of the parties and subject matter is not open to collateral attack on account of illegality or fraud which was in issue and open for consideration in the trial in which the judgment was rendered, although such judgment may have been taken by default or consent on the day following the bringing of the original action.
William Easton Hutchison, and C. E. Vance, both of Garden City, for the appellant.
George Getty, and H. E. Walter, both of Syracuse, for the appellees.
This was an action by Engene Schenck, sr., to enjoin the collection of a tax levied for the purpose of paying two judgments rendered against the defendant school district No. 34 of Hamilton county. Plaintiff appeals from the ruling sustaining a demurrer to his evidence and the holding that the judgments sought to be enjoined are not open to collateral attack.
The judgments on account of which the tax was levied were obtained by Ross, who built a new school building for the district, and by Ford, who furnished the material for its construction. It was alleged that the judgments were fraudulently obtained through the collusion of the plaintiffs in those actions with the director and treasurer of the district, who knew that the contracts upon which the judgments were based were void because they were entered into by the director and treasurer without any authority "from a district meeting or meeting of the district board of said district," and that "the construction of such a schoolhouse had not been authorized by the voters of said district and no provision had been made at any district meeting for funds to construct the same, and that said contracts and all alleged indebtedness incurred by said director and treasurer in and about the construction of said schoolhouse were and are wholly null and void as against said district."
It appears that school district No. 34 comprises territory eight miles long and five miles wide. The district had a school building in the eastern part of the territory, and at their annual meeting in April, 1916, the electors voted in favor of erecting another building in the western part of the district and that the selection of a site should be left to the decision of the board. At a meeting of the board held on July 6, 1916, it was voted that the new schoolhouse should be located at a certain point in the west end of the district, and that a frame building thirty-four feet long, eighteen feet wide and with ten-foot studding should be erected. The district was then without funds, but the electors voted a levy of twelve mills for general school purposes. At an election held in June, 1916, a proposition to issue bonds in the amount of $ 800 to pay for the new school building was voted down. Shortly after the selection of a site and the decision of the board as to the size and character of the new building a majority of the board entered into the contracts with Ross and Ford, who thereafter built a frame building of the size mentioned. In the minutes of the board meeting of July the clerk made a note that he objected before witnesses to building a schoolhouse of that size. At a board meeting held on September 5 it was voted to allow warrants for the cost of the material and labor for the building, the clerk voting against the measure, and soon thereafter a teacher was hired, who began work as early as September 11, since which time the schoolhouse has been in use by the district. On September 22, 1916, Ross and Ford each brought an action against the district, and on the next day the board had a meeting, not attended by the clerk, when they voted to ratify the contracts with Ross and Ford and the action taken by the director and treasurer in respect to the contracts, and the building was accepted. They also voted to empower the director to employ counsel to look after the interests of the district in the actions brought by Ross and Ford, "either by suit or compromise." On the same day the board's attorneys entered into a stipulation with the plaintiffs in the actions mentioned, wherein it was agreed that the cases should be tried immediately without a jury. At the trial the plaintiffs were each awarded judgment, the district filing no answers and offering no evidence. To pay these judgments the board, on September 27, authorized a tax levy of eight and a half mills, which is the tax sought to be enjoined in this action. After the judgments were secured the clerk issued a call for a meeting to be held on October 2, pursuant to a petition signed by over ten of the taxpayers of the district, at which meeting it was voted to disaffirm the contracts made by the board, and they also authorized the clerk and another to make application to the court to set aside the judgments.
The plaintiff contends that the contracts were void because the board acted without authority in the selection of a site; in that no provision was made as to the kind of a schoolhouse to be built; and in...
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