Barz v. Sawyer , 159 Iowa 481 ( 1913 )

Ladd, J.

In 1905 the board of supervisors of Hancock county established drainage district No. 9, and the contract for the excavation of sections 3, 4, and 5 of the ditch was let to the Interstate Drainage & Investment Company. It completed the work, but “failed to perform its contract in the time and manner specified by the contract to do the work in good workmanlike manner with respect to the sides of the drainage ditch, in that the sides were left rough and uneven, and in giving proper slope, and that there was caving and injury in parts of the ditch that interfere with its efficiency, and failed to remove the dirt back from the edges of the ditch strictly and substantially as required by the contract. ’ ’ At least, the district court so decreed July 1, 1909, in an action by the plaintiffs in this case against the defendants other than the Farmers’ National Bank begun in March, 1908, praying that the defendant Sawyer, as treasurer of the county, be enjoined from paying certain warrants issued by the county auditor, and the defendant the Interstate Drainage & Investment Company from receiving the same. The facts were as follows: The contract price was $23,104.88, of which 80 per cent, or $18,500 had been paid the contractor in pursuance of section 1989-a9 Code Supplement, leaving $4,604.88 unpaid. The engineer in charge of the work certified that the drain had been constructed in a good and workmanlike manner, but not strictly according to the contract and specifications, but that it was a good job, and recommended that the final 20 per cent, of the contract price be paid except $1,000 to be withheld until some of the work should be completed. Though the improvement was not completed and had not been accepted, by the board of supervisors, that body about January 8, 1908, ordered that $3,604.88 be paid the contractor and $1,000 retained in accordance with the engineer’s recommendation. Thereupon the auditor issued three warrants, one for $1,000, another for $2,000, and the third for $604.88. These plaintiffs, whose lands were included in the districts with others numbering thirty-seven in all, began tbe action as stated, alleging in their petition that the report and certificates of the engineer on which the warrants issued were untrue, and so known to be by him as well as the board of supervisors and contractor, and were fraudulently made and accepted, stated wherein the ditches had not been excavated in accordance with the contract, alleged that the board of supervisors had no authority to pay or accept the work until certified by the engineer to have been complete, and prayed that the acceptance of the improvement by the engineer and the board of supervisors be adjudged fraudulent and void, that the county treasurer be restrained from paying any warrants or evidences of debt for said drainage work held by the contractor which had been issued to it or any other sums of money or warrants or evidence of indebtedness to it.

All the defendants appeared to the action at the April, 1908, term of court, and the trial was not begun until December 21, 1908. The cause was submitted February 13, 1909, and the decree entered as stated July 1, 1909, as prayed, and expressly declared that the board of supervisors and the engineer were without authority to dispense with the performances of the contract, set aside the acceptance of the work, and the defendants were enjoined from paying the warrants to the contractor or any other person in its behalf, as prayed. Thereafter, it was discovered that after the suit was begun and prior to the entry of the decree the defendant Sawyer as treasurer of the county, had paid the $2,000 warrant to the contractor and the warrant, of $604.88 to the Farmers’ National Bank to whom the contractor had assigned the warrant. Thereupon the present action was instituted for the purpose of amending the decree previously entered so as to render the same effective.

The petition herein alleged the facts heretofore recited; that the plaintiffs were not aware at any time prior to the entry of the decree in the former action that such payments had been made; that the defendants, county treasurer, the contractor, and the Farmers’ National Bank with full knowledge of the facts entered into a conspiracy to procure the payment of the said warrants prior to the entry of the decree, and they did, while the trial of the original action was in progress, procure the payment of the warrants as stated; that the treasurer had no right to pay an portion thereof pending such litigation nor the contractor to receive the same; .that the bank took the assignment with full knowledge of the facts; that the board of supervisors had been requested to bring this suit, but had refused to do so, and the plaintiffs asked that the defendants, the county treasurer and the contractor, be ordered to pay over to the county treasurer for the benefit of the drainage district amounts paid and received on said warrants, and that the bank be adjudged to pay over to the county the amount it received, such amount to be applied upon the judgment against the treasurer and contractor. To this petition a general equitable demurrer was interposed and overruled. The defendants elected to stand on the ruling, whereupon decree was entered as prayed, and they appeal.

1. Equity: bills of review: nature of same: scope of remedy. The petition is in the nature of a bill of review. The object of such a bill and the bill of review in the old chancery practice was to procure a reversal, modification, or explanation of a decree entered in a former suit. The bill of review proper was filed after the sign-ing and enrollment of the decree; a supplemental bill in the nature of a bill of review was a term applied to a bill seeking the revision of a former decree, when filed before such decree had been signed and enrolled; and an original bill in the nature of a bill of review was applicable when the interest of the party seeking a reversal was not before the court when the decree was rendered. McGregor v. Gardner, 16 Iowa, 538; Whiting v. Bank of U. S., 13 Pet. 6, 13 (10 L. Ed. 33).

These were prosecuted where (1) errors were apparent on the face of the record, and (2) because of matters dehors the record. The rules relating thereto were first systematically arranged by Lord Bacon when Chancellor of England, and appear in his celebrated Ordinances in Chancery. These, in so far as they relate to bills of review, seem to form the foundation of modern decisions on the subject. Brewer v. Bowman, 3 J. J. Marsh. (Ky.) 492 (20 Am. Dec. 158), and note.

2. Same. newly discovere The requisites of a bill of review for newly discovered matter imposed by or deduced from these ordinances are said to be: (1) That the matter was discovered after the decree was rendered. (2) It could not have been discovered before by the exercise of reasonable diligence. (3) It is material, and such as, if true, ought to produce on another trial of the issue a different result on the merits. (4) It is not merely cumulative. Mead v. Arms, 3 Vt. 148 (21 Am. Dec. 581). That such bill would lie for newly discovered evidence or for new matter arising after the entry of decree is put beyond doubt by the authorities. Purcell v. Coleman, 4 Wall. 519 (18 L. Ed. 459); Scott’s Appeal, 112 Pa. 427 (5 Atl. 671); Mosher v. Mosher, 108 Mich. 612 (66 N. W. 486); Reynolds v. Reynolds, 88 Va. 149 (13 S. E. 395); Dingess v. Marcum, 41 W. Va. 757 (24 S. E. 624); Camp Mfg. Co. v. Parker (C. C.) 121 Fed. 195; Hill v. Phelps, 101 Fed. 650 (41 C. C. A. 569); 16 Cyc. 530.

3. Same: forms of action code practice. In this state all forms of action are abolished (section 3557, Code), but the substance remains, and by petition the relief obtained by bill of review or bill in the nature of a bill of review is still available pigadjug such ag authorized by the Code. See sections 3755, 4092, Code. Hilts v. Ladd, 35 Or. 237 (58 Pac. 32); Crowns v. Forest Land Co., 102 Wis. 97 (78 N. W. 433).

4. Same: judgments: action for review. The particular matter alleged in this ease is that pending litigation resulting in the first decree the warrants sought to be and therein enjoined were paid without the knowledge of the plaintiffs or the court. This was not discovered until after the entry of the decree; an(j; ^ view of the allegations of the petition, it cannot be said that failure to do so was due to any want of diligence. Plaintiffs had the right to assume that, should any change in the situation be effected by defendants pending litigation, this would be brought to.the attention of the court. Otherwise that tribunal might be put in the attitude of solemnly adjudicating concerning a subject-matter properly before it when by the secret machinations of a party it has been put beyond its reach. The courts cannot thus be robbed of their jurisdiction with impunity and their decrees thereby rendered nugatory.

5. Same: relief compensation. It is well settled that, when a defendant disenables himself pending suit in equity to comply with an order for specific relief, the court will proceed to afford relief by way of compelling compensation to be made. Milkman v. Ordway, 106 Mass. 232, 253; Wingert v. National Bank, 223 U. S. 670 (32 Sup. Ct. 391, 56 L. Ed. 605). The last of these eases was an action to restrain the bank from erecting a new bank building and in the course of the opinion the court remarked: “No doubt, after the filing of a bill for an injunction, defendants proceed at their peril, even though no injunction is issued; and, if they go on to inflict an actionable wrong upon the plaintiff, will not be allowed to defeat the jurisdiction of the court by their own act. In such case the bill will be retained for the assessment of damages.” In Lewis v. Town of North Kingston, 16 R. I. 15 (11 Atl. 173, 27 Am. St. Rep. 724), the suit was to enjoin defendant from removing a building from and grading a lot. While the suit was pending, defendant did the things sought to be enjoined and by supplemental answer pleaded this as a reason for denying relief. Replications were filed, and thereupon defendants moved that the bill be dismissed, and in overruling the motion the court said: “ It ought not to be in the power of a defendant in an injunction bill to oust the court of its jurisdiction by committing pendente lite the very acts to prevent which the suit was begun, and such, we think, is the law.” In Merrimack River Sav. Bank v. Clay Center, 219 U. S. 527 (31 Sup. Ct. 295, 55 L. Ed. 320, Ann. Cas. 1912A, 513), defendant removed telephone poles after decree dismissing an application to enjoin it from so doing had been entered and pending appeal to the Supreme Court, and that court with reference thereto said: “It-does not necessarily follow that disobedience of such an injunction, intended only to preserve the status quo pending an appeal, may not be regarded as a contempt of the appellate jurisdiction of this court, which might be rendered nugatory by conduct calculated to remove the subject-matter of the appeal beyond its control, or by its destruction. This we need not decide, since, irrespective- of any such injunction actually issued, the willful removal beyond the reach of the court of the subject-matter of the litigation, or its destruction pending an appeal from a decree praying among other things an injunction to prevent such removal or destruction until the right shall be determined is, in and of itself, a contempt of the appellate, jurisdiction of this court. That such conduct may not be a violation of the injunction below affords no reason why it is not also a contempt of this court. Unless this be so, a reversal of the decree would be but a barren victory, since the very result would have been brought about by the lawless act of the defendants which it was the object of the suit to prevent” — citing numerous decisions. See, also, State ex rel. Morse v. Dist. Court, 29 Mont. 230 (74 Pac. 412); Ex parte Kellogg, 64 Cal. 343 (30 Pac. 1030). To hold otherwise, would indorse trifling with the court and the evasion of its decrees by subterfuge. Though probably not contempt of court, what was done borders closely thereon, and to permit anything to be gained by such a practice would be inconsistent with the orderly and dignified course of procedure.

6. Same: judgments: conclusiveness. In the case at bar the decree first entered is conclusively presumed to be correct as to matters in issue then before tbe court, and, in the absence of any showing to the contrary, to have been based on a decision of all issues adversely to the defendants. Black v. Miller, 153 Iowa, 293. This being so, it necessarily follows that payment of the warrants pending litigation was illegal, for, had this not been done, payment would have been prevented by the decree. The merits of the original decree ¿re in no wise involved, but it may be remarked that the method pursued by the engineer and board of supervisors was to say the least irregular. It is only when the engineer has certified that the improvement has been completed to his satisfaction that the board of supervisors is called upon to approve or disapprove and if it approve, that the county auditor is authorized to issue warrants for the final payment of 20 per cent, of the contract. Section 1989-a, Code Supplement. Whether had defense been interposed and a showing been made that the defects found by the court had since been remedied, or that the amounts still retained were sufficient for that purpose, we should have held this would defeat the petition, need not now be considered. See Monahan v. Vanatta, 144 Iowa, 128; Little v. Webster Co., 152 Iowa, 206.

7. Same: pleadings: admission by demurrer. The demurrer admitted all facts well pleaded in the petition, and among these that payment of the money out of the county treasury had been enjoined, and this was conclusive on the proposition that the funds should have . been allowed to remain there, and for this reason there was no error in ordering their restoration. In no other manner can the court obviate the attempt of defendants pending litigation to rob it of the subject-matter of jurisdiction acquired and render its decree nugatory. The ruling of the trial court has our approval. — ■ Affirmed.