School District No. 3, In the County of Carbon v. The Western Tube Co

Decision Date28 March 1905
PartiesSCHOOL DISTRICT NO. 3, IN THE COUNTY OF CARBON, v. THE WESTERN TUBE CO
CourtWyoming Supreme Court

ERROR to the District Court, Carbon County.

This was an action brought by the Western Tube Company upon a warrant issued by School District No. 3, in the County of Carbon, October 30, 1886. The case came to this court on error from a judgment in favor of the plaintiff, and to review an order entering the findings in the cause nunc pro tunc. The facts are stated in the opinion.

Affirmed.

McMicken & Blydenburgh, for plaintiff in error.

The nunc pro tunc order was improperly made. The evidence fails to disclose that any order was originally made to enter the findings; no intention of it is to be found in the judge's docket nor in the appearance docket, nor was any record of the findings made by the trial judge or in any record required to be kept. (Hudson v. Hudson, 20 Ala. 364.) The findings take the place of a verdict and the latter cannot be supplied by a nunc pro tunc order. (1 Black on Judgments, 133.) And where there is no judgment on the record the court cannot at a subsequent term order a judgment entered nunc pro tunc; if the record does not show that a judgment was rendered, it cannot be supplied at a subsequent term. (Gray v. Thomas, 12 S. & M., 111; Jennings v. Ashley, 5 Ark., 128; North v. Pepper, 20 Wend., 677; Kissam v. Hamilton, 20 How. Pr., 375.) If the parties have been guilty of laches in applying for a nunc pro tunc order, such order should not be entered. (1 Black. on Judgments, 129.) The presumption is that the clerk did his duty, and he was not required to enter anything without the payment of costs; there is no evidence that any money was tendered to pay for entering the findings. (Laws 1890-91, Chap. 53, Secs. 7, 8, 9.)

The judgment of July 13, 1899, is not valid and should not have been made, for the reasons: (1) No findings or conclusions had been entered as recited in the judgment; and no findings having been entered, they could not be reviewed on a writ of error. (2) No general judgment could be rendered in this cause. The warrant was drawn upon a particular fund to which the plaintiff must be required to look for payment. The judgment, if any, therefore, in favor of the plaintiff should have been that the money be paid out of the contingent fund upon which it was drawn. (Campbell v. Court, 76 Mo 57; Pettis County v. Kingsbury, 17 Mo. 479; Moody v. Cass County, 74 Mo. 307; Kingsbury v Pettis County, 48 Mo. 207; Boro v. Phillips County 4 Dill., 216; McCullough v. Brooklyn, 23 Wend., 458; Tippecanoe County v. Cox, 6 Ind. 403; People v. Wood, 71 N.Y. 371; Caylor v. Rochester, 12 Wend., 165; Argenti v. San Francisco, 16 Cal. 255; Martin v. San Francisco, id., 285; Lake v. Williamsburgh, 4 Denio, 520.) The statute prescribes no method for collecting a general judgment against a school district. The only power given the district to raise any money is given to the electors at the annual meeting. It is against public policy to allow the levy of a general fund against school district property; and, while mandamus proceedings are allowed to compel certain municipalities to levy a tax for the payment of a judgment, such municipalities have had the power to levy such a tax. A school district, however, has no power to levy such a tax without a vote of the electors, except in the case of bonds provided for by statute to pay which the County Commissioners may levy a tax. Such power is not given to the County Commissioners to pay a judgment against a school district. Again, a school district has no power to contract a debt for which a judgment might be rendered in excess of the revenues for the current year. (School Dist. v. Western Tube Co., 5 Wyo. 185.)

As the findings were not in fact entered of record until after the rendition of judgment, the running of the statute limiting the time for proceedings in error upon the judgment did not commence until the date of the actual entry of the findings. Such findings could not have been reviewed until they had been entered. (Spencer v. Troutt (Cal.), 65 P. 1083; 1 Black on Judgments, 136; Borer v. Chapman, 119 U.S. 587.) We claim, therefore, that even if the nunc pro tunc order was proper the entire proceedings may now be reviewed.

The warrant sued upon should not have been admitted in evidence, because it was alleged to have been drawn upon the "contingent" fund, while on its face it appeared to have been drawn upon the "court" fund. The court erred in overruling the defendant's motion to strike out the evidence respecting the conduct of the building committee; this being a suit upon a school warrant of the district and it being immaterial whether the building committee proceeded to construct the school house or not. The fact that the building committee had advertised for bids was immaterial, since it was admitted that the school district board had not advertised for the heating apparatus, as required by statute. (Sec. 8, Chap. 93, Laws 1886.) And it was not until June 7, 1886, after the advertisement of the building committee, that the trustees attempted to give any power to the committee to let the contract for heating apparatus. Moreover, the committee was acting not under the authority of the board, but by virtue of a legislative act. The proceedings of the district board at the adjourned meeting June 7, 1886, were improperly admitted, for the reason that the trustees were without authority to give any power to the building committee. (School Dist. v. Western Tube Co., 5 Wyo. 185.) The following matters were improperly admitted in evidence, namely: the fact that the school district owned property or had money outside of the contingent fund; the assessed valuation of the railroad and telegraph property for the year 1886, for the reason that the County Commissioners had not divided and adjusted the mileage between the several districts and caused the amounts of such assessment to be entered and placed in the list of taxable property returned by the several assessors. Hence, there was no assessment of such property in 1886 and no record from which it could be ascertained. The court erred in striking out the evidence as to the purchase of furniture which had occurred prior to the issuance of the warrant sued on; because this action is not brought on the contract for the heating plant, or on quantum meruit, but upon the warrant. It was, therefore, especially material to show the indebtedness of the school district in order to determine its power to become indebted under the congressional limitation, as well as in respect to the presence of available funds.

A plaintiff suing upon a warrant must show that the law has been strictly complied with in the issuance of the same. All matters connected with such warrant should be of record and must be proved thereby. (Township v. Ryan, 86 Pa. St. 459; Hubbard v. Lyndon, 28 Wis. 674; School Dist. v. Blakeslee, 13 Conn. 227; Sherwin v. Bugbee, 17 Vt. 337; Jordan v. School Dist., 38 Mo. 164; Commrs. v. Chitwood, 8 Ind. 504; Trustees v. Osborne, 9 Ind. 458; Archer v. Commrs., 3 Blackf., 501; El Dorado v. Reed, 11 Cal. 130; Campbell v. Breckenridge, 8 Blackf., 47; Potts v. Henderson, 2 Ind. 327; Crumps v. Supervisors, 52 Miss. 107.) There was no attempt in this case to prove that any motion for the issuance of the warrant was made at any meeting of the board, hence there was no showing that the omissions in the record was the result of mistake. The burden is upon the plaintiff to prove the validity of the warrant when it is attacked and to prove that the proper action was taken when the records are silent, and when it was shown by them that no meeting was had at the date of the warrant. The warrant being drawn upon the contingent fund was but an assignment of that fund, and to it the holder must look for payment. (Clemson v. Davidson, 5 Binn., 392; Wiggins v. McDonald, 18 Cal. 126; McWilliams v. Webb, 32 Iowa 577; Garsney v. Gardner, 49 Me. 167; Spiker v. Nylegger, 30 Md. 315; Jordan v. Gillen, 44 N. H., 424; Noyes v. Brown, 33 Vt. 431; Shannon v. Hoboken, 37 N.J. Eq. 123; Thompson v. Emery, 7 Fost., 269; L. & M. Co. v. Marsh, 91 Pa. St. 96; Clark v. Muran, 3 Paige, 373; McClellan v. Walker, 26 Me. 114; Newby v. Hill, 2 Metc., 530; Richardson v. Rust, 9 Paige, 243; Conway v. Cutting, 51 N. H., 407; Walker v. Mauro, 18 Mo. 564; Spain v. Hamilton, 1 Wall., 604; Binn v. Pierce, 20 Vt. 25.)

The school board had no authority to either enter into a contract for the heating apparatus or issue the warrant sued upon, as decided in the case when here before from a former judgment, and the other evidence introduced upon the last trial is not sufficient to alter the situation. In dealing with school districts, all parties must take knowledge of their powers and their want of power. School warrants are not negotiable paper. There could be no ratification by the district of the void act of the board.

John W. Lacey, for defendant in error.

There was no proof of laches on the part of the plaintiff below in making its application for a correction of the record. The nunc pro tunc order for the entry of the findings in order to make the record speak the truth as to such findings was proper. (Gross v. Sloan, 58 Ill.App. 302; Freeman v. Morris, 44 N. Car., 287; Wollfolk v Gunn, 45 Ga. 117; Wade v. Bryant (Ky.), 7 S.W. 397.) Every court has a right to judge of its own records and minutes; and if it appear satisfactory that an order was actually made at a former term and omitted to be entered by the clerk, it may at any time direct such order to be entered as of the term when it was made. (Benedict v. State, 44 Ohio St. 679; Kaufman v. Shain, 111 Cal. 16; Burnett v. State, 14 Tex. 455; School Dist. v. Bishop, 46 Neb....

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