Ward v. Gradin
| Decision Date | 04 August 1906 |
| Court | North Dakota Supreme Court |
Appeal from District Court, McLean county; Winchester, J.
Action by Ralph D. Ward and others against Ole Gradin. Judgment for defendant, and plaintiffs appeal.
Reversed.
Judgment reversed, and a new trial granted.
Newton & Dullam, for appellants.
Plaintiff's in conversion must allege their ownership and right to possession at the time of the taking. Parker v Bank, 3 N.D. 87, 54 N.W. 313; Clendenning v. Hawk, 8 N.D. 419, 79 N.W. 878.
Act organizing McLean county was unconstitutional. Richards v. Stark County, 8 N.D. 392, 79 N.W. 863; Schaffner v. Young, 10 N.D. 245, 86 N.W. 733; State ex rel. Walker v. McLean County, 11 N.D. 356, 92 N.W. 385.
Sheriff's authority to levy for delinquent taxes is confined to his county. Chapter 134, Laws 1903; Schaffner v. Young, supra.
An unconstitutional act affords no justification for any act done under it. Norton v. Shelby County, 118 U.S 425, 30 L.Ed. 178.
The defendant was a trespasser. State v. McLean County, supra.
One sued for an official act cannot justify as a de facto officer. 5 Am. & Eng. Enc. Law, 96; State v Carroll, 38 Conn. 449; Norton v. Shelby County, supra; Blake v. Sturtevant, 12 N.H. 567; Conover v. Devlin, 15 How. Pr. 477; Cummins v. Clark, 15 Vt. 653; Courser v. Powers, 34 Vt. 517; Outhouse v. Allen, 72 Ill. 529; Meagher v. Story Co., 5 Nev. 244; In re Hinkle, 31 Kan. 712.
Plaintiff was entitled to judgment notwithstanding the verdict for the value of his cattle. Laws 1901, page 74, chapter 63; Richmire v. Andrews, 11 N.D. 451, 92 N.W. 819; Johns v. Ruff, 12 N.D. 714, 95 N.W. 440; Nelson v. Grondahl, 12 N.D. 130, 96 N.W. 299.
W. L. Nuessle and Guy C. H. Corliss, for respondent.
It is settled law in Wisconsin, from which our law was copied, that a special verdict need not cover all the issues, but is sufficient, if when taken in connection with the undisputed facts, or facts with respect to which the proofs are all one way, it sustains the case of the party in whose favor it is rendered. Stringham v. Cook, 44 N.W. 777; Cooper v. Ins. Co. of Pennsylvania, 71 N.W. 606; Murphy v. Weil, 61 N.W. 315.
The right of a municipal corporation to exercise jurisdiction can be attacked only by the sovereign, not collaterally. People v. Oakland, 28 P. 807; State v. Westport, 22 S.W. 888; State v. McMillan, 18 S.W. 784; East Dalla v. State, 11 S.W. 1030; People v. Peoria, 46 N.E. 1075; State v. Cram, 16 Wis. 343; People v. Maynard, 15 Mich. 463; State v. McLean County, 11 N.D. 356-360, 92 N.W. 385.
The plaintiffs are suing to recover damages for the alleged conversion of 38 head of cattle, which they claimed to own as partners when the cattle were seized by the defendant, who at the time of the seizure was the sheriff of McLean county. The defendant admits the seizure and sale of the cattle, but denies that they were the sole property of Ralph D. Ward, one of the plaintiffs. Defendant justifies the seizure and sale by virtue of proceedings to collect certain delinquent personal property taxes assessed against Ralph D. Ward in McLean county. There was a trial to a jury, which found in favor of defendant and judgment was entered accordingly. Plaintiffs moved in the alternative for judgment notwithstanding the verdict or for a new trial, which motion was heard and denied before the entry of judgment. This appeal is from the judgment.
One of the main questions in controversy at the trial was as to the ownership of the cattle. The defendant claimed that Ralph D. Ward was the sole owner thereof, and denied that the other two plaintiffs had any interest therein. In relation to this issue the defendant's counsel propounded to the county treasurer, who was a witness, the following question: "State whether or not Ralph D. Ward has paid any personal property taxes since 1899 voluntarily." The question was objected to on the ground that it was incompetent, irrelevant and immaterial. Plaintiff's counsel thereupon stated that the object of the question was to show a persistent and determined purpose to avoid the payment of taxes, and the court overruled the objection. The witness answered that said Ward had not voluntarily paid such taxes since 1899. The evidence was clearly irrelevant to the issue being tried. That it was prejudicial is equally plain, especially in view of the avowed object of the question. It could hardly fail to create a prejudice in the minds of the jury against the plaintiffs, and especially against Ralph D. Ward, who was their main witness. This error requires a reversal and new trial.
There was no error in denying plaintiffs' motion for a directed verdict, and hence the motion for judgment notwithstanding the verdict was also properly denied. On this point plaintiffs contend: (1) That there was no issue made by the answer as to plaintiffs' alleged joint ownership of the cattle on the date of the conversion; (2) that the place where the seizure by the sheriff was made was outside the boundaries of McLean county. We think the criticism of the answer is hypercritical. The complaint alleged the conversion on October 3, 1903. The denial of plaintiffs' alleged ownership found in the answer is in the present tense, and, strictly construed, simply denies that the plaintiffs were the owners on the day the answer was dated or verified; but it is perfectly plain that it is merely a grammatical error, which could mislead no one, and which would have been speedily corrected, if attention had been called to it before the trial. We think it is one of those trivial defects which the court is directed to disregard by section 5300. Rev. Codes 1899 (Rev. Codes 1905, section 6886). The answer also contains a general denial, and in the part of the answer pleading the justification it is stated in express terms that the levy was made upon cattle then belonging to Ralph D. Ward.
The plaintiffs contend that the cattle in question were seized outside of McLean county, where the defendant and the taxing officers of that county had no authority to act. The defendant contends, on the other hand, that the place of seizure lies within McLean county, and that the seizure and sale were therefore made with legal authority. The pleadings fix the place of seizure upon section 22, township 148, range 86. This is within the boundaries of McLean county as fixed by chapter 50, p. 129, Laws 1891; the same being an act to increase the boundaries of McLean and certain other counties. Counsel for plaintiffs contend that this act is void for the reason that the subject of the act is not expressed in the title, and to sustain this contention rely upon the decision of this court in Richard v. Stark County, 8 N.D. 392, 79 N.W. 863. We are agreed that the right of McLean county to exercise its corporate authority over the territory added by chapter 50, p. 129, Laws 1891, is not now open to question. This court held in State v. McLean County, 11 N.D. 356, 92 N.W. 385, in a direct attack by quo warranto upon the corporate authority being exercised by McLean county over the territory in question under the act of 1891, that because of the long-continued and general acquiescence in the validity of that act, and for the reason stated in the opinion, it could not be questioned, whether upon the application of a private relator, or even upon application of the state. We are entirely satisfied with the conclusion announced in that case. But, regardless of our conclusion in the above case, in no event can the present attack be sustained. The former was a direct attack. The present attack is entirely collateral. McLean county has been exercising jurisdiction over the territory in question under the assumed authority of the act above referred to for 15 years. It is settled law that 1 Dillon on Munic. Corp. (4th Ed.) sections 43a, 418; Cooley, Const. Lim. (5th Ed.) 311; 1 Smith on Munic. Corp., section 59, and cases cited; also Coler & Co. v. Dwight School District, 3 N.D. 249, 55 N.W. 587, 28 L. R. A. 649, and cases cited. It is manifest, therefore, that, to the extent that the plaintiffs' right of recovery rests upon an alleged want of authority in the officers of McLean county to impose and collect taxes in the territory in question, it is not well founded.
For the reason first above stated, the judgment will be reversed, and a new trial granted. It is not necessary to express any opinion as to whether the special verdict in this case is sufficient, or as to whether the insufficiency of the verdict would be ground for reversal, if the facts not found appeared from the statement of the case to have been admitted or conclusively established.
I concur in the result, but place my concurrence in the reversal upon the insufficiency of the special verdict. At the close of the testimony the court, against the objection and exception of plaintiffs' counsel, submitted the case to the jury for a special verdict upon six questions. No general verdict was returned. The special verdict, consisting of the questions and the jury's answers thereto, is as follows: ...
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