The Columbian Title and Trust Company v. The City of Tribune

• Decision Date: 09 May 1931
• Docket Number: 29,714
• Parties: THE COLUMBIAN TITLE AND TRUST COMPANY, Appellee, v. THE CITY OF TRIBUNE (GEORGE L. REID, D. R. BECKSTROM and W. M. GLENN, Interveners), Appellants
• Court: Kansas Supreme Court

298 P. 798

133 Kan. 51

THE COLUMBIAN TITLE AND TRUST COMPANY, Appellee, v. THE CITY OF TRIBUNE (GEORGE L. REID, D. R. BECKSTROM and W. M. GLENN, Interveners), Appellants

No. 29,714

Supreme Court of Kansas

May 9, 1931

Decided January, 1931.

Appeal from Greeley district court; HARRY E. WALTER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. JUDGMENTS -- Res Judicata -- Matters Reserved by Court. In an action against a city on warrants issued by it, where the trial court rendered judgment on certain of them and held others to be invalid because they were in excess of the amount of the levy for street improvement for a particular year, and added "that nothing in this decision is intended to determine the right of the plaintiff or its assignors to recover upon the original indebtedness represented by the warrants sued on in the other causes of action, upon which judgment has not been rendered," it is held that such judgment is not res adjudicata as to the feature of the indebtedness represented by such invalid warrants.

2. PLEADING--Amendment of Petition--Change in Description of Obligation as New Cause of Action. Where a reply in an action on city warrants, in controverting the defense of failure of consideration, alleged that the warrants were issued to the payees thereof on account of debts legally due to such payees on contracts entered into by the city which it had authority to make, and the warrants were issued in pursuance of allowances and settlements made by the city for such indebtedness, an amended petition setting up the separate indebtedness of the city for labor performed and material furnished, pleading and referring to the sworn vouchers filed for each of the claims for which the warrants were issued, is not a departure from the original causes of action on the warrants, nor does it present entirely different causes of action from those in the original petition, nor substantially change the claims nor the issues from those raised by the reply.

3. SAME--Amendment to Conform to Proof--Change in Cause of Action. An amended pleading is authorized by R. S. 60-759 to be filed to conform to the facts proved, where it does not substantially change the claim, and held that under the situation outlined in the preceding paragraph of this syllabus the allegations of the amended petition do not substantially change the claim.

4. SAME--Amendment to Conform to Proof--Sufficiency of Evidence. The evidence introduced on the trial considered and held there were facts proved to which the amended petition conformed, as found by the trial court.

5. MUNICIPAL CORPORATIONS--Street Improvements--Liability for Labor and Material--Effect of Irregularities in Proceedings. Where there is no want of authority in a city of the third class to improve its streets, and labor is performed and material purchased by the direction and under the supervision of the city, and it has received and is retaining the benefits of such labor and material, the city cannot escape liability for the reasonable value of such work actually done and material furnished, under the direction and supervision of the city officers, because of mere irregularities in its own proceedings and its failure to fully and formally comply with all the requirements and provisions of the statutes with regard to ordering such improvements to be made, employment of persons for such purpose or in settlement or appropriation of money therefor.

George L. Reid, D. R. Beckstrom, W. M. Glenn, all of Tribune, for the appellants; J. Graham Campbell, of Wichita, of counsel.

John S Dean and Harry W. Colmery, both of Topeka, for the appellee; Thomas F. Doran, Clayton E. Kline and M. F. Cosgrove, all of Topeka, of counsel.

OPINION

HUTCHISON, J.:

This action was originally one to recover on city warrants, but the appeal is from the refusal of the court to strike from the files an amended petition and from the sustaining of a motion to render judgment for plaintiff on the pleadings and the evidence. The plaintiff sought to recover on seventy-two warrants issued by the defendant, the city of Tribune, a city of the third class. A waiver of service and a confession of judgment signed by the mayor and councilmen for the city was filed. Three taxpayers were upon their own request permitted to intervene on behalf of the city to make a defense to the action. They filed an intervening answer admitting the corporate existence of the plaintiff and the organization of the defendant as a city of the third class; also admitting the execution of all the city warrants by the proper officers of the city; that they were indorsed by the payees thereof, were presented for payment and not paid for want of funds, and that the plaintiff is the owner of them. The answer denies the issue of them for valuable consideration and alleges that the city did not get value received for the issue of them, and that they are invalid and illegal because issued in excess of the levy of taxes of the city for the current year; no proper city ordinance for the appropriation of this money or the issue of the warrants was passed as required by law prior to their issuance; and further alleges collusion between the officers of the city and the plaintiff in the offer of the city to confess judgment. Shortly after the filing of this pleading and before any hearing was had, the city of Tribune by leave of court withdrew its offer to confess judgment and filed an answer to the petition, the same as that filed by the interveners. To this answer of the city the plaintiff filed its reply specifically denying having entered into any collusion with the officers of the city and alleging that it is not advised as to whether any of the warrants were issued in excess of the revenues of the city, but--

". . . that whatever the fact may be in regard to the current revenue of the city of Tribune, at the time of the issuance of the warrants described in the plaintiff's petition, or any of them, and whatever the fact may be as to whether an ordinance of said city was passed authorizing the issuance of said warrants, the facts are, that each and every one of said warrants was issued for bona fide indebtedness of the city of Tribune, which it had authority at the time to contract, and in pursuance of the allowance and settlement of such indebtedness by the duly constituted authorities of said city. . . .

"That each and every one of said warrants mentioned and described in the several causes of action contained in the petition were issued to the payees of said warrants respectively, on account of debts legally due to said payees of said warrants respectively, on contracts entered into by said city with said payees respectively, which said contracts, and each of them, the said defendant, city of Tribune, had authority at the time to make, and did make with the payees of said warrants respectively."

The defendant assumed the burden of proof and a trial was had before the judge upon the issues thus formed. Judgment was rendered for plaintiff on part of the warrants and the others were held to be invalid, in the following language and manner:

". . . that the warrants in question drawn on the street fund during the year 1924, up to the amount of $ 750.72, the amount of the tax levy for street purposes, are legal and valid and all warrants drawn on said street fund during the year 1924, in excess of that amount, are invalid. . . . It is further considered, ordered, adjudged and decreed, that nothing in this decision is intended to determine the right of the plaintiff or its assignors to recover upon the original indebtedness represented by the warrants sued on in the other causes of action, upon which judgment has not been rendered."

Both parties filed motions for new trial, which were overruled and no appeal was taken. Plaintiff filed an amended petition, alleging as to the first count--

"That the defendant is indebted to one E. P. Fox in the sum of ninety-four and 16/100 dollars ($ 94.16), for labor performed for the defendant at its special instance and request, the particulars of which will appear by an itemized account, duly verified by affidavit, and filed in the office of the city clerk of Tribune, Kansas, all as required by law, which account is hereby referred to and made a part of this petition the same as though fully set out herein.

"That to evidence such indebtedness the defendant made and delivered to said E. P. Fox its warrant No. 960, drawn upon its city treasurer, in the sum of ninety-four and 16/100 dollars ($ 94.16), dated August 29, 1924, which warrant is attached to the original petition filed in this cause, marked 'Exhibit 1,' and is by reference made a part of this amended petition the same as though fully set out herein.

"That for a valuable consideration the said E. P. Fox assigned said account to this plaintiff, by indorsing on said warrant the words 'E. P. Fox' and delivering the same to this plaintiff."

The amended petition concludes with the allegation that the plaintiff is the lawful owner of the account, that the defendant fails and refuses to pay the same, that there is due the plaintiff the amount named with interest, and prays for judgment accordingly. Similar allegations were made as to each of the forty-nine counts, differing only as to dates, amounts, labor performed or material furnished.

The motion of the defendant to strike the amended petition from the files assigns four reasons, as follows:

"1. The said amended petition and every one of its forty-nine causes of action is for entirely different causes of action from the original causes of action set up by the plaintiff in its petition in this case.

"2. Because judgment has been rendered by the court in this case and the...