Territory ex rel. Johnston, Co. v. Woolsey

Citation1913 OK 194,130 P. 934,35 Okla. 545
Decision Date11 March 1913
Docket NumberCase Number: 2077
PartiesTERRITORY ex rel. JOHNSTON, Co. Atty., et al. v. WOOLSEY et al.
CourtSupreme Court of Oklahoma
Syllabus

¶0 1. MUNICIPAL CORPORATIONS--Fraudulent Claims--Settlement--Taxpayers' Action--Persons Entitled to Sue. By reason of sections 7413 and 7414, Comp. Laws 1909, upon the performance of conditions therein prescribed, an action may be maintained in the name of the state on relation of one or more resident taxpayers of a city against any officer of a city who has transferred property of the city or paid out its money in settlement of a claim known to such officer to be fraudulent, or void, or in pursuance of any unauthorized, unlawful, or fraudulent contract and against any person to whom or for whose benefit such money shall have been paid, to recover the property or double the value of the property so transferred, or double the amount of money so misappropriated.

2. SAME--Fraudulent Payment--Actions--Authority of County Attorney. Said statute does not authorize an action to be maintained for the purposes therein mentioned in the name of the state on the relation of the county attorney.

3. SAME-- Property Unlawfully Disposed of--Action Against Officer--Limitations. Said statute, in so far as it authorizes an action to be maintained in the name of the state for the recovery of double the value of the property transferred or double the amount of money so misappropriated, or money unlawfully paid out, authorizes the recovery of a penalty; and such action, by reason of section 5550, Comp. Laws 1909, must be brought within one year after the cause of action accrues.

4. LIMITATION OF ACTIONS--Raising Defense of Statute-- Demurrer. Where a petition upon its face shows that the cause of action is barred by the statute of limitation, it is proper to sustain a demurrer thereto upon that ground.

5. PLEADING--Petition--Amendment. Where an amended petition is not made as an amendment to the preceding petition or petitions, but is made as a substitute and is a complete petition in itself and contains no reference to any prior petition or petitions or to the exhibits thereto attached, the allegations of the prior petitions, except as repeated in the amended petition, are abandoned, and the court cannot look to preceding petitions for the purpose of a demurrer to the amended petition.

Error from District Court, Noble County; W. L. Barnum, Judge.

Action by Territory of Oklahoma, on relation of Henry S. Johnston, County Attorney, and others, against J. P. Woolsey and others. Judgment for defendants, and plaintiffs bring error. Reversed and remanded.

H. A. Johnson, for plaintiffs in error.

James B. Diggs and S. H. Harris (H. B. Martin, of counsel), for defendants in error.

HAYES, C. J.

¶1 This action was instituted in the district court of Noble county in the name of the territory of Oklahoma, on relation of Henry S. Johnston, as county attorney of Noble county, and on the relation of 27 resident taxpayers of the city of Perry. The action was begun and prosecuted for the recovery of $ 60,282.34, being double the amount alleged to have been misappropriated by the defendants in error J. P. Woolsey, as mayor of the city of Perry, and W. H. Kirchner, James Lobsitz, J.C. Fleming, L. B. Le Grant, E. R. Stagg, and C. G. Jones, as members of the city council of the city of Perry, and John Knox, as treasurer of the city, from the funds of said city for the purpose of procuring a right of way for the Arkansas Valley & Western Railway Company through the city.

¶2 The action is prosecuted under the authority of an act of the Legislature of March 8, 1901 (Sess. Laws 1901, p. 169; sections 7413, 7414, Comp. Laws 1909). The provisions of the act controlling the case are to be found in sections 2 and 3 thereof, which, in so far as they are applicable to the issues here involved, are as follows:

"Sec. 2. That every officer of any * * * city, * * * who shall hereafter order or direct the payment of any money or transfer of any property belonging to such * * * city * * * in settlement of any claim known to such officers to be fraudulent or void, or in pursuance of any unauthorized, unlawful or fraudulent contract or agreement made, or attempted to be made for any such * * * city * * * by any officer or officers thereof, and every person having notice of the facts, with whom such unauthorized, unlawful or fraudulent contract shall have been made, or to whom, or for whose benefit such money shall hereafter be paid, or such transfer of property shall be made, shall be jointly and severally liable in damage to all innocent persons in any manner injured thereby, and shall be further jointly and severally liable to the * * * city * * * affected for double the amount of all such sums of money so paid, and double the value of the property so transferred as a penalty to be recovered at the suit of the proper officer of said * * * city, * * * or of any resident taxpayer thereof, as hereinafter provided.
"Sec. 3. That upon the refusal, failure or neglect of the proper officer of any * * * city, after written demand made upon them by ten resident taxpayers of such * * * city to institute or diligently prosecute proper proceedings at law or in equity for the recovery of any money or property belonging to such * * * city, paid out or transferred by any officer thereof, in pursuance of any unauthorized, unlawful, fraudulent or void contract, made or attempted to be made, by any of its officers for any such * * * city, or for the penalty provided in section 2 of this act, any resident taxpayer of such * * * city affected by such payment or transfer after serving the notice aforesaid and after giving security for costs, may, in the name of the territory of Oklahoma, as plaintiff, institute and maintain any proper action at law or in equity, which the proper officers of the * * * city might institute and maintain for the recovery of such property, or of said penalty, and any such municipality shall in such event be made defendant, and one-half the amount of money, and one-half of the value of the property recovered in any action maintained at the expense of a taxpayer under this action, shall be paid to such resident taxpayer as a reward."

¶3 To the original petition a motion to make more definite and certain was sustained. An amended petition was filed to which was attached as exhibits the warrants upon which it is alleged the money was illegally paid out by defendants in error. Afterwards, a second amended petition was filed, to which a demurrer was sustained, and, plaintiffs in error refusing to plead further, judgment was rendered, dismissing the cause, from which judgment this appeal is prosecuted.

¶4 The demurrer, sustained to the second amended petition, contains numerous grounds, but not all of them were urged in the court below. The principal grounds relied upon are that there is a misjoinder of parties plaintiff, and that the action was barred by the statute of limitations. Counsel for defendants in error state in their brief in this court that the propositions of law raised by their demurrer are: First. A number of persons having distinct causes of action against a defendant or defendants cannot join in an action as plaintiffs against such defendants for the purpose of enforcing such demands. In order for persons to be joined as plaintiffs in an action, they must have some joint or common interest in the cause of action stated in the petition against the defendants. Second. That the statute authorizes the suit to be maintained upon the relation of one taxpayer only; and that such suit cannot be maintained by several taxpayers jointly. The third and fourth propositions are that the action is barred, either in whole or in part, by the statute of limitations.

¶5 In view of the number of times it as been held that the misjoinder of parties plaintiff is no ground for demurrer to the petition under our Code, we cannot treat the proposition presented by the first ground of demurrer as an open one in this jurisdiction, and we therefore shall not review the numerous authorities cited by counsel in their brief from other jurisdictions in support of their contention. Stiles v. City of Guthrie, 3 Okla. 26, 41 P. 383; Weber v. Dillon, 7 Okla. 568, 54 P. 894; Martin v. Clay et al., 8 Okla. 46, 56 P. 715; Lee et al. v. Mehew et al., 8 Okla. 136, 56 P. 1046; Choctaw, O. & G. Ry. Co. v. Burgess, 21 Okla. 653, 97 P. 271.

¶6 Assuming, as contended by counsel for defendants in error, that the petition states a separate cause of action in favor of the several taxpayers and not a joint one, and that the demurrer attacks the petition upon the ground of misjoinder of causes of action also, still plaintiffs' action should not have been dismissed. While a petition that states separate causes of action in favor of several parties plaintiff is vulnerable to demurrer on the ground of improper joinder of several causes of action, the trial court in sustaining the demurrer upon such ground should not dismiss the action without giving the plaintiffs an opportunity to file their several petitions, if they desired to further prosecute their respective suits upon request for an opportunity to do so. Weber et al. v. Dillon, supra; Martin v. Clay et al., supra. Waiving the foregoing rule, however, the contention of defendants in error that the statute, in that it provides that suit may be instituted and maintained by "any resident taxpayer of such city," authorizes the suit to be prosecuted in the name of the territory or state on the relation of only one taxpayer, is not sound. It is true that the action is a statutory one, and he who seeks to prosecute it must find all of his authority within the terms of the statute; and the statute, in so far as it imposes upon the offending officer a liability for double the amount of any money misappropriated or double the value of any property wrongfully transferred, is...

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