State v. Minar
| Decision Date | 19 December 1892 |
| Citation | 31 P. 723,13 Mont. 1 |
| Parties | STATE ex rel. COPE v. MINAR, County Treasurer. |
| Court | Montana Supreme Court |
Original application for a writ of mandamus by the state of Montana ex rel. George F. Cope against W. J. Minar, treasurer of Choteau county. Writ granted
Walsh & Newman, for relator.
John W Tattan, for respondent.
This is an application for a writ of mandamus to be issued out of this court to the county treasurer of Choteau county commanding him to pay a certain warrant, which was issued June 6, 1891, to Barnard Brown, by order of the board of county commissioners of the county. The respondent alleges in his answer that there were no funds applicable to the payment of this warrant prior to the 6th day of October, 1891, and at that time the same was canceled, by virtue of a judgment of the district court of said county, and for this reason the application should be denied. The account of Brown was allowed, and this warrant therefor was issued June 6, 1891 and presented for payment, and registered, June 9, 1891. The relator, George F. Cope, has been the holder and owner of the warrant since the 11th day of June, 1891. The foregoing proceedings were had before the entry of the judgment, which is specified in the answer. A notice of appeal was filed June 27, 1891, in the district court of Choteau county: "State of Montana, county of Choteau--ss.: To Alfred E. Rodgers, Esq., county clerk of the county of Choteau, and ex officio clerk of the board of commissioners of said county of Choteau: You will please take notice that William H. Todd, a resident and taxpayer of the county of Choteau, and state of Montana, feeling aggrieved by a certain allowance made by the board of commissioners of the said county of Choteau, at its regular June session, 1891, in favor of one B. Brown, in the sum of eleven hundred dollars, ($1,100.00,) for work done by said B. Brown, as expert, in examining the accounts of said Choteau county, as excessive, unjust to the county of Choteau, and illegal, will appeal, and hereby does appeal, to the district court of the tenth judicial district of the state of Montana, in and for the county of Choteau, from the allowance made by said board of commissioners of the county of Choteau to B. Brown, on the 2d day of June, 1891, in the sum of eleven hundred dollars, upon the grounds that such allowance of eleven hundred dollars, ($1,100.00,) made to said B. Brown, on said date, is excessive, unjust to the county of Choteau, and is illegal; and the said William H. Todd hereby appeals from the same to said district court." A bond, with two sureties, was also executed by said Todd. This notice and bond were prepared to enable Todd to appeal from the decision of the board of county commissioners, under this statute: "Whenever a claim of any person against the county shall be disallowed, in whole or in part, or when any taxpayer of the county shall feel aggrieved by any allowance made by the board as excessive, unjust to the county, or illegal, such person may appeal from the decision of such board to the district court for the county, by causing a written notice of such appeal to be served on the clerk of such board, within thirty days after the making of such decision or allowance, and executing a bond to such county, with surety, to be approved by the clerk of such board, conditioned to prosecute such appeal to effect, and to pay all costs that shall be adjudged against the appellant." Comp. St. div. 5, § 764. The statute further enacts: "Such appeal shall be entered, tried, and determined the same as appeals from justices' courts, and costs shall be awarded in like manner." Id. § 765.
All the proceedings in the district court comprise two records. An order was entered October 2, 1891, in the following words: The confusion arising from the use of the word "plaintiff" and "defendants" disappears when we read the judgment, which is as follows: "In the tenth judicial district court of the state of Montana, in and for the county of Choteau. William H. Todd, Appellant, vs. The Board of Commissioners of Choteau County, Montana, Respondent. In this action, William H.
Todd, who is a taxpayer of the said county of Choteau, having regularly prosecuted an appeal, under the statute in such case made and provided, from the action of the board of commissioners of said county of Choteau, in allowing, at their June, 1891, meeting, the claim of one Barnard Brown, in the sum of eleven hundred dollars, ($1,100.00,) and in issuing the warrant of said county thereon in said sum of eleven hundred dollars, ($1,100.00,) which warrant is numbered 5,868, on the general fund of said county; and said appeal having duly come on for trial this 2d day of October, A. D. 1891, and no appearance being had in opposition thereto by said board of county commissioners, --the default of said board in the premises was duly noted, and application for judgment on said appeal was thereupon made by said appellant. The court, being fully advised in the premises, sustained said motion. Wherefore, by virtue of the law and the premises, it is hereby ordered, adjudged, and decreed that said claim of Barnard Brown is illegal, and not a proper charge against said county of Choteau, and the said action of said board of commissioners in allowing the same is hereby disapproved, reversed, and set aside; and it is further ordered, adjudged, and decreed that the warrant issued by board of county commissioners on the general fund of said county, the same being numbered 5,868, is void, and of no effect; and the same is hereby ordered to be canceled and set aside." There is no record of any further action in that tribunal, and no attorney appeared therein for any of the parties. The statute does not require that notice of these proceedings shall be given to the holder of the warrant, or the original claimant, and it is contemplated that the district court will review the proceedings of the board of county commissioners. The appellate jurisdiction of the district court is generally exercised when there has been a service of an appropriate notice upon the interested parties, but this class of cases forms an exception. There was no trial or inquiry of any character respecting the merits of the account of said Brown, and the court seems to have entered a judgment by default by reason of his failure to appear and answer. The claim of Brown was not litigated, and no evidence was heard, and there was no statement of the facts upon which the decision could be rendered. We are of opinion that the court did not have the authority to adjudicate in this manner that the account was an illegal charge against the county of Choteau. The judgment does not therefore constitute a defense. It is ordered that the writ of mandate be issued, in accordance with the application of the relator.
The judgment in this case shows on its face that the claim in question was adjudged "illegal," without any hearing or inquiry as to the merits thereof, on the ground that the board of county commissioners had made default in falling to appear and maintain the validity of said claim in the district court, upon appeal from the allowance by the county commissioners. It appears from the record "that the default of defendants having been duly entered, the court ordered that judgment be entered in favor of plaintiff." The decree then declares that, ...
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