Brannon v. White Lake Tp.

95 N.W. 284, 17 S.D. 83, 1903 S.D. LEXIS 10

Opinion

Haney, P. J.

The plaintiff alleges that he is the owner and holder of the following order or warrant, which was presented for payment and payment refused on. October 10, 1894, no part of which has been paid: “$1,500.00. South Dakota, County of Aurora. May 5th, 1893. To the Treasurer of White Lake Township, S. D.: Pay to the order of Alfred Short, per H. M. Miles, the sum of fifteen hundred dollars, for No. 2 artesian well, drilling 500 feet, at $3.00 per foot, out of any money in your hands belonging to the artesian well fund not otherwise appropriated, belonging to said township. [Signed] A. H. Hall,- Clerk. G. W. Cooper, Chairman, pro tern. No. 22” He also alleges that at or about the time the payment of said warrant was demanded there was money in the treasury of the defendant corporation belonging to the so-called “artesian well fund. ” Defendant admits the execution of the warrant, denies the plaintiff’s ownership, denies that there was money in the artesian well fund when payment was demanded, alleges payment of the warrant, and pleads the statute of limitations. At the close of the trial defendant moved the couru to direct a verdict in its favor on the grounds (1) that the plaintiff is not the real party in interest, and (2) that plaintiff’s cause of action did not accrue within six years next preceeding the commencment of the action. The motion was granted, and the plaintiff appealed.

Respondent’s contention that this appeal should be dismissed because it was taken before the judgment roll was filed is untenable. The roll was filed July 2, 1901. Notice of appeal was served on respondent’s attorney June 27, 1901, and on the clerk July 3, 1901. An appeal is taken by service of notice in writing on the adverse party and on the clerk of the court in which the judgment or order appealed from is entered. Comp. Laws 1887, § 5215. Where a party has an attorney in in the action, service must be made upon the attorney, instead of the party. Id. § 5336. Service on the clerk is as essential as service on the attorney of the adverse party. V. C. Land Co. v. Schone, 2 S. D. 344, 50 N. W. 356. The statute declares that ‘ ‘the appeal shall be deemed taken by the service of the notice of appeal.” (Comp. St. 1887, § 5215); that is to say, by service on the adverse party and on the clerk. Hence the appeal in this case was not taken until service was made on the clerk, and before that was done the roll- had been filed. As respondent’s position would not be more favorable under the law oJ 1901 relating to the filing of judgments and orders, no opinion is expressed regarding the effect, if any, of that law upon the taking of appeals. Laws 1901, c. 166. When received in evidence, the warrant bore the following endorsement: “I hereby assign the within warrant to P. H. Brannon of Lawler,' Iowa. Alfred Short per H. M. Miles.” “Town Order No. 22. The within order presented for payment this day and the same not paid for want of funds. White Laké, South Dakota. Dated Oct. 10, 1894. Registered No. 30. A. H. Hall, Town Treasurer.” The evidence tends to prove that on or about May 30, 1893, the plaintiff, acting as the agent of one Hawe, purchased the warrant of H. M. Miles for and with funds belonging.to his principal, and that he has never had any interest therein otherwise than as such agent. It will not be inferred that the verdict was directed on the ground that the plaintiff was not the real party in interest, as he was entitled to maintain this action in his own name as the trustee of an express trust. Comp. Laws 1887, § 4872; Hudson v. Archer, 4 S. D. 128, 55 N. W. 1099; Citizen’s Bank v. Corkings, 9 S. D. 614, 70 N. W. 1059, 62 Am. St. Rep. 891.

It is conceded, and properly so, that the contract in suit falls within the six-years limitation. Comp. Laws 1887, § 4850. This action was commenced on June 2, 1900. Therefore the inquiry arises whether plaintiff’s cause of action accrued within the six years next preceeding that date. Id. § 4833. Evidence was introduced tending to establish these facts: Bonds were sold by the defendant corporation for the purpose of se: curing funds with which to construct certain artesian wells.' Had the proceeds of such bonds not been embezzled by a former town treasurer, there would have been sufficient money in the fund upon which plaintiff’s warrant was drawn to have paid it in full at any time from its execution to its pi’esentment for payment. The precise date of the embezzlement does not appear. Mr. Hall, who became treasurer in March, 1894, testified as follows: “I have testified that I received no money for the' artesian well fund from my predecessor. I have since received money on account of that futid. I received it, I think, the 13th day of July, a year ago. That is the first that I received. I then received 81,500. I think — I won’t be positive — it was 81,525 or 81,550. I haven’t the book with me. I have not received money on account- of the artesian well fund since that time. 'I cannot tell the exact amount of money there is now in the artesian well fund. -It is seven or eight hundred dollars.” The abstract being silent as to when the trial took place, we are unable to determine the condition .of the artesian well fund when this action was commenced — a matter not material on this appeal, but which may become so should the cause be again tried. The authorities are somewhat conflicting as to when a cause of action accrues on a county, city or town warrant; the result, no doubt, of the difference in the statutes of the several states, and the fact that the question is in some cases considered in connection with the statute of limitations, and in others with reference to whether the action has been prematurely commenced. In disposing of the present appeal, for the purposes of which it must be assumed that the warrant sued on isa valid, unpaid obligation:of ohe defendant corporation, a review of the authorities is .deemed unnecessary. An action on the warrant was certainly hot barred before it was presented for payment and registered by the town treasurer on October 10, 1894 — less than two years. after it was executed. If it was then a valid, unpaid warrant, the treasurer was authorized to register it. Comp. Laws 1887, §§ 1672, 1673. If it was not a valid obligation, the question of limitation becomes immaterial, and it is unnecessy to decide what effect, if any, registration would have on an invalid obligation. The plaintiff might, after having presented his warrant, havé refrained from having it registered; but, having elected to accept the benefits of the statute on that subject, he was precluded from bringing suit thereon until there was sufficient money in the fund upon which it was drawn for its payment in the order of registration, or until sufficient time had elapsed in which to provide the requisite funds for its payment in the manner provided by law. Stewart v. Custer Co., 14 S. D. 155, 84 N. W. 564. Clearly a cause of action cannot accrue be fore the time is reached when an action can be maintained thereon. The right of the plaintiff to have his warrant registered cannot be questioned on this appeal, and, having had it registered, no act on his part would have entitled him to sue on it before the conditions existed which authorize actions to be instituted on registered warrants. Defendant was not entitled to a verdict on the ground that the plaintiff’s cause of action was barred by the statute of limitations. And, as the warrant is prima facie evidence of a cause of action, and the condition of the town treasury when this case was begun is not disclosed, the direction of the verdict in defendant’s favor cannot be justified on the ground that the suit was prematurely instituted.

In anticipation of the issues likely to arise on a second trial, it is proper to observe that the warrant sued on should be regarded as representing but one indivisible cause of action; and while it is prima facie evidence of such cause of action, a suit cannot be maintained thereon where it affirmatively appears that there was not, when the suit was commenced, sufficient money in the fund on which it is drawn to pay it in full, in the order of registration, and sufficient time had not then elapsed in which to collect the necessary fund's for that purpose in the manner provided by law.

The judgment of the circuit court is reversed, and a new trial ordered.