Williams v. Fairmount Sch. Dist. of Richland Cnty.

• Decision Date: 20 January 1911
• Citation: 21 N.D. 198,129 N.W. 1027
• Parties: WILLIAMS v. FAIRMOUNT SCHOOL DIST. OF RICHLAND COUNTY et al.
• Court: North Dakota Supreme Court

21 N.D. 198

129 N.W. 1027

WILLIAMS

v.FAIRMOUNT SCHOOL DIST. OF RICHLAND COUNTY et al.

Supreme Court of North Dakota.

Jan. 20, 1911.

Syllabus by the Court.

The respondents herein applied to this court for a writ of certiorari in this action. Counsel in opposition to such application made certain statements and admissions as to the nature and effect of an application theretofore made to the district court by respondents herein. Such statements and admissions were acceded to on the hearing by the applicants for such writ. The opinion of the court found in Schouweiler et al. v. Allen et al., 17 N. D. 510, 117 N. W. 866, was predicated largely upon such statements and admissions. Held that, on an appeal from an order made in said action, counsel cannot be heard to question the correctness of the action of the court in relying upon the statements and admissions so made on the application for the writ of certiorari.

The dismissal, entered on stipulation of counsel, of an appeal from an order of the district court, is not an adjudication precluding the appellant therein and the respondent herein from subsequently applying to the district court for an order granting other and different relief from that denied by the order formerly appealed from.

Respondents herein made application to the district court for an order vacating a judgment entered in this case by that court. The district court at that time did not have jurisdiction of the action, as it was in this court on appeal. Immediately on the return of the record to the district court from this court, the application to vacate the judgment was renewed. Held, that the determination of the first application did not stand in the way of a new application on the same ground made after jurisdiction had been revested in the district court, and, in any event, that the consideration of a second application while that court had jurisdiction of the action did not under the circumstances of this case constitute an abuse of discretion.

An application not based upon the provisions of section 6884, Rev. Codes 1905, which provides, among other things, that courts may within one year after notice thereof relieve a party from a judgment, etc., taken against him through his mistake, inadvertence, surprise, or excusable neglect, but made upon the ground that the judgment complained of was entered upon a collusive and fraudulent stipulation of the parties, and was in law a fraud upon the voters and taxpayers of the school district against which it was taken, a judgment may be vacated after the expiration of a year by reason of the inherent power possessed by courts of general jurisdiction to set aside collusive and fraudulent judgments.

Under the facts disclosed or the record in this case, and referred to in the opinion held, that the moving party was not guilty of laches in making the application for the order appealed from herein.

An application to vacate a judgment obtained by collusion and fraud upon the voters and taxpayers of a school district made by a party affected on proper showing need not be accompanied by an affidavit of merits.

Appeal from District Court, Richland County; Allen, Judge.

Action by T. P. Williams against the Fairmount School District of Richland County and others. There was a judgment for plaintiff, and, from an order setting it aside, he appeals. Affirmed.

Chas. E. Wolfe and Purcell & Divet, for appellant Williams. Dan R. Jones, for other appellants. W. S. Lauder, for respondents.

SPALDING, J.

This is an appeal from an order entered on the 17th day of May, 1909, by the district court of Richland county, vacating and setting aside a judgment of that court in favor of the appellant herein, entered on the 19th day of February, 1908, and reinstating the action in which such judgment was entered on the calendar for trial in the district court of said Richland county on its merits, which order also directed that Hon. W. S. Lauder, counsel for E. W. Schouweiler, W. H. Cox, and K. Currie, be allowed to take part in the trial of said cause on behalf of his said clients, and all other citizens, electors, and taxpayers of Fairmount school district who may wish to be represented on the trial of said action, at the expense of the individuals employing said Lauder. The proceedings leading up to this are somewhat complex, and include the application to this court for a writ of certiorari on the part of the parties above named, which application was denied, and the court's reasons for such denial stated in the opinion in Schouweiler et al. v. Allen et al., 17 N. D. 510, 117 N. W. 866. It is unnecessary to review at length the facts or to detail the proceedings. In that opinion we held as one of the reasons for denying the application for the writ of certiorari that the applicant still had the right to apply to the district court to vacate its judgment in favor of the appellant herein, and thereby become parties to the record. The action is between the plaintiff, a citizen and taxpayer of the Fairmount school district, and the members of the school board, and it is sought therein to enjoin the school board from issuing bonds voted at an election held on that question for the purpose of erecting a schoolhouse. The applicants or petitioners in the certiorari proceeding, the respondents on this appeal, were all electors and taxpayers of the Fairmount school district in Richland county, N. D., and their rights were affected by the judgment entered by stipulation in the action referred to, enjoining the school officials from issuing the bonds, and building the schoolhouse after the question had been submitted and carried at an election. They sought to participate in the defense in that action, but were denied that right by the trial court, after a substitution of attorneys had been made for the district by order of court, the one first employed having declined to stipulate for judgment against the district. After the application for the writ of certiorari was denied by this court, the respondents herein, as taxpayers and citizens of such district, applied in accordance with the suggestions in the opinion referred to to the district court for the relief granted by the order now being considered.

Before determining this appeal, we refer to certain criticisms by counsel for appellant contained in his brief of a statement contained in the opinion cited, to the effect that that application was treated solely in the trial court as an application to intervene after judgment. It is...