State ex rel. Clark v. Bailey

• Decision Date: 24 April 1935
• Docket Number: 7363.
• Citation: 44 P.2d 740,99 Mont. 484
• Parties: STATE ex rel. CLARK v. BAILEY, City Treasurer.
• Court: Montana Supreme Court

44 P.2d 740

99 Mont. 484

STATE ex rel. CLARK v. BAILEY, City Treasurer.

No. 7363.

Supreme Court of Montana

April 24, 1935

Appeal from District Court, Carbon County; Robert C. Stong, Judge.

Proceeding by the State, on the relation of Elisha M. Clark, for a writ of mandate to Joe Bailey, Treasurer of the City of Red Lodge. Judgment for relator, and defendant appeals.

Reversed with direction.

John G Skinner, of Red Lodge, for appellant.

George W. Pierson, of Billings, for respondent.

C. F MORRIS, Justice.

This proceeding was commenced in the district court of Carbon county to secure a writ of mandate to compel the defendant to pay over to the relator $2,146.88 on account of certain special improvement bonds issued by special improvement district No. 27 of the city of Red Lodge, Mont., and owned by the relator.

The action came on for hearing May 8, 1934, with Judge Goddard of the Thirteenth judicial district presiding. After some preliminary proceedings and the testimony of one witness had been partially taken, Judge Goddard, on his own motion, continued the hearing until May 22, 1934. On the lastnamed date the case was taken up for hearing by Judge Stong, the other judge of the Thirteenth district. The defendant objected to proceeding under Judge Stong, but the court held that the partial hearing had before Judge Goddard on May 8th was a mistrial, and the hearing of the case was proceeded with. Judgment was rendered in favor of the relator, and the writ was issued directing the city treasurer to pay over to the relator the amount prayed for in his petition. This appeal is from the judgment.

Defendant, appellant here, in his brief assigns six separate and distinct errors, but in his argument groups the last five in one and they will be treated in like manner here. The first assignment is "the trial judge was without jurisdiction to hear and determine this action." This assignment is based upon an alleged error by the court in overruling defendant's objection to proceeding with the hearing under Judge Stong. In a subsequent controversy between counsel it appears that a stenographer called in to take the place of the official stenographer could not take the testimony, and for that reason the case was continued by Judge Goddard. After extended comments by counsel of both parties, Judge Stong stated that Judge Goddard had advised him he did not wish to proceed in the matter, and that "the record may show that as regards the proceedings concerning the trial that was had on May 8, 1934, the court declares that a mistrial, and you may proceed with the trial at this time."

The objections made by the defendant to Judge Stong's presiding were general in nature. No intention to disqualify Judge Stong appears from the objection made, and it is not contended that the hearing, conducted as it was, resulted in any injury to the defendant.

"No litigant or party to an action or proceeding has any vested right to have his cause heard before a particular judge." State ex rel. Little v. District Court, 49 Mont. 158, 141 P. 151, 152. There was nothing improper in Judge Goddard's continuing the hearing. Granting or refusing to grant a continuance is at any time within the sound legal discretion of the court (Borden v. Lynch, 34 Mont. 503, 87 P. 609; Hunt v. Van, 61 Mont. 395, 202 P. 573), and "its exercise in any case is not subject to review by this court, in the absence of an affirmative showing that the complaining party has suffered prejudice" (Downs v. Cassidy, 47 Mont. 471, 133 P. 106, 107, Ann. Cas. 1915B, 1155). The court may order a continuance on its own motion. Curry v. McCaffery, 47 Mont. 191, 131 P. 673. We think the general rule is accurately stated in 64 Corpus Juris, p. 67, where it is said: "Except where it is prohibited by statute a change of the presiding judge during a trial is not a fatal irregularity unless actual prejudice results to a party by reason thereof."

Both the judges in this case were the regularly elected and qualified judges of the Thirteenth judicial district, and had equal authority to preside in this case. The proceedings in this particular, while informal and slightly irregular, furnish no ground for reversible error.

It is next contended that the city is a necessary party defendant. When the act sought to be compelled is an act that a particular official is authorized to do, and nothing remains to be done by the city or any other officer or board, the particular official is the only necessary party. 38 C.J.§ 555, p. 852.

In Powell v. People, 214 Ill. 475, 73 N.E. 795, 105 Am. St. Rep. 117, 2 Ann. Cas. 551, it is said: "Generally speaking, all persons interested in the matter involved must be made parties. *** On the other hand, however, it is not the practice to make any other person respondent than the officer failing or refusing to perform a plain duty." See, also, note 105 Am. St. Rep. 117, pages 123, 124, supra, where the general rule is given.

In Shields, County Collector, v. Grear, City Collector, 55 N. J. Law, 503, 27 A. 807, in which the county collector of revenue sued a city collector for money collected by the latter for the former, it was shown that a certain amount of money had been collected for the county and remained unpaid. Held, that the party who should act, the city collector, only, was a necessary party.

In Krier v. Town of Walsenburg, 26 Colo App. 150, 141 P. 505, in mandamus proceedings to compel the town clerk, who was authorized by ordinance to issue licenses to moving picture concerns, it was held that the mayor and city council were not necessary parties.

In Finney v. Smith, 227 Ill.App. 146, it was held that the city was not a necessary party in an action for mandamus to compel the city treasurer to pay a city warrant.

Defendant's contention that the city is a necessary party in this action we think should have been raised by special demurrer as provided by subdivision 4 of section 9131, Revised Codes 1921, and that, when defendant failed to allege a defect of parties defendant by such demurrer, but proceeded with the trial of the action on the merits, it will be deemed to have waived such defect. Meredith v. Roman, 49 Mont. 204, 141 P. 643; Puckett v. Hopkins, 63 Mont. 137, 206 P. 422; State v. Great Falls City Council, 19 Mont. 518, 49 P. 15; Board of Commissioners v. Heath, 79 Colo. 429, 246 P. 794; State ex rel. Viking Tp. v. Mikkelson, County Treasurer, 24 N.D. 175, 139 N.W. 525.

On the merits, the material questions raised by the defense we think are: (a) Plaintiff is barred by the statute of limitations, section 9031, Revised Codes 1921; (b) $2,000 paid to the city treasurer for the credit of special improvement district No. 27 was embezzled by him and was never paid to the city; (c) there is only $146.88 in the custody of the present city treasurer to the credit of district No. 27, and mandamus will not lie. These questions will be taken up in the above order.

The legality of the bonds and the liability of the city treasurer are not questioned, except as above; the relator is admitted to be the holder, and demand is shown by the record and payment refused. The defense is largely technical, except the question as to whether mandamus will lie, and that question turns on the point as to whether there are funds in the city treasury that may be legally used to pay relator's demand.

(a) In the face of the bond are these provisions:

"This bond bears interest at the rate of six per cent. per annum from the date of registration of this bond, as expressed herein, until the date called for the redemption by the city treasurer. The interest on this bond is payable annually on the first day of January, in each year, unless paid previous thereto, and as expressed by the interest coupons hereto attached, which bear the engraved facsimile signature of the mayor and city clerk.

The bond is payable from the collection of a special tax or assessment which is a lien against the real estate within said improvement districts, as described in said resolution hereinbefore referred to.

This bond is redeemable at the option of the city at any time there are funds to the credit of said special improvement district fund for the redemption thereof, and in the manner provided for the redemption of the same."

These provisions of the bonds are in accordance with those required by section 5249, Revised Codes 1921. This section further provides: "Whenever there are any funds in any special improvement district fund, after paying the interest on such warrants (or bonds) drawn against said fund, the treasurer shall call in for payment outstanding warrants (or bonds), which, together with the interest thereon to the date of redemption, will equal the amount of said fund on that date, which date shall be fixed by the treasurer, who shall give notice by publication once in a newspaper published in the city, or at the option of the treasurer, by written notice to the holder or holders of such warrants (or bonds), if their address be known, of the number of warrants (or bonds) and the date on which payment will be made, which date shall not be less than ten days after the date of publication or of service of notice, and on which date, so fixed, interest shall cease."

The city treasurer is the custodian of all city funds, including those in special improvement districts, and he is charged by the statutes with the duty of calling such warrants (or bonds) as those involved here when funds are available. When the date of payment is uncertain and dependent on the call of the city treasurer, the statute of limitation does not begin to run until the "call of the treasurer, or until the holder had an immediate cause of action." Stagg v Stagg, 90 Mont. 180, 300 P. 539; Norton...