Williams v. Fairmount School District of Richland County
| Decision Date | 20 January 1911 |
| Citation | 129 N.W. 1027,21 N.D. 198 |
| Court | North Dakota Supreme Court |
Appeal from an order of the district court of Richland county Allen, J.
Affirmed.
Chas E. Wolfe and Purcell & Divet, for plaintiff-appellant.
Dan R Jones for defendants-appellants.
Order of dismissal affirms order or judgment appealed from, and is res judicata. Enderlin State Bank v. Jennings, 4 N.D. 228, 59 N.W. 1058; Clopton v. Clopton, 10 N.D 569, 88 Am. St. Rep. 749, 88 N.W. 652; Schouweiler v. Allen, 17 N.D. 510, 117 N.W. 866.
Time to move for vacation of judgment is limited to one year. Rev. Codes 1905, § 6884; Sargent v. Kindred, 5 N.D. 472, 67 N.W. 826; Prescott v. Brooks, 11 N.D. 93, 90 N.W. 129; Wheeler v. Castor, 11 N.D. 347, 61 L.R.A. 746, 92 N.W. 381.
Affidavit of merits must accompany motion. Kirschner v. Kirschner, 7 N.D. 291, 75 N.W. 252; Gauthier v. Rusicka, 3 N.D. 1, 53 N.W. 80.
W. S. Lauder, for respondents.
One year limit to vacate a judgment only applies to grounds mentioned in statute. Martinson v. Marzolf, 14 N.D. 301, 103 N.W. 937; Ladd v. Stevenson, 112 N.Y. 325, 8 Am. St. Rep. 748, 19 N.E. 842; Garr, S. & Co. v. Spaulding, 2 N.D. 414, 51 N.W. 867; 15 Enc. Pl. & Pr. p. 266.
Affidavit of merit not required when application is on the grounds of improvidence, impropriety, or fraud. Browning v. Roane, 9 Ark. 354, 50 Am. Dec. 218; Toy v. Haskell, 128 Cal. 558, 79 Am. St. Rep. 70, 61 P. 89; Willson v. Cleaveland, 30 Cal. 192; Messenger v. Marsh, 6 Iowa 491; Pease v. Kootenia County, 7 Idaho, 731, 65 P. 432; Crescent Canal Co. v. Montgomery, 124 Cal. 134, 56 P. 797; Morris v. Kahn, 31 Misc. 25, 62 N.Y.S. 1040; 23 Cyc. Law & Proc. p. 956.
On dismissal of appeal with no directions to the lower court, the latter can make any proper order, as if there were no appeal. Dorn v. Crank, 96 Cal. 381, 31 P. 528; Perry v. Gunby, 42 Ga. 41; Lee v. Pindle, 12 Gill & J. 288; Ashley v. Brasil, 1 Ark. 144; Freas v. Engelbrecht, 3 Colo. 377; Monti v. Bishop, 3 Colo. 605; Helm v. Boone, 6 J. J. Marsh. 351, 22 Am. Dec. 75.
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 Honorable 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 v. Allen, 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 applicants 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, North Dakota, and their rights were affected by the judgment entered by the 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 said that this was dictum, unwarranted by the record, and that in fact it was an application to vacate the judgment, and because the respondents herein appealed from the order denying that application, the matter is res judicata. Counsel has overlooked what occurred on the argument of that application, and statements made in his brief for the purpose of defeating such application. Such statements made orally and in the brief were to the effect that the applicants, the respondents herein, had the legal right after judgment, and still have the right, to ask the judge of the trial court to vacate and set aside the judgment below, and to permit them to intervene and conduct their part of the action and enforce their legal rights in it, and that the judge of that court had never denied such right, because they had never applied for it. It was conceded by the opposing counsel that intervention could not be had after judgment. We accepted the statements of counsel for both parties, and this was among the reasons for denying the application for the writ of certiorari. We dismiss the criticisms with this explanation, and proceed without opinion on the assumption, concededly correct, that that application was treated and to be considered only as stated.
1. An appeal was taken from the denial of the application of the respondents herein to intervene after judgment. That appeal, after the determination of the certiorari proceedings, was dismissed on stipulation of counsel. It is now contended by appellant that this affirmed the order appealed from, and forecloses the right of respondents to the order from which this appeal is taken, and that therefore the trial court was in error in granting the application to vacate the judgment. It is apparent from what we have said that the application for the order from which this appeal is taken is for different relief from that applied for on the former occasion, and which involved the appeal dismissed, and it is clear that whatever the effect of that dismissal may be upon the rights of the parties as to the order then appealed from, it has no effect upon the order from which this appeal is taken, made upon an application asking substantially different relief.
2. A short time prior to the making of the application which resulted in the order from which this appeal is prosecuted, and after the determination of the application for the writ of certiorari, these respondents made an application to vacate the judgment referred to on grounds...
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