Hardy v. Purington

61 N.W. 158, 6 S.D. 382, 1894 S.D. LEXIS 159

• Court: South Dakota Supreme Court
• Decided: December 15, 1894
• Status: Published

Opinion

Kellam, J.

This is an appeal from a judgment of the circuit court of Hughes county awarding a peremptory writ of mandamus. In her affidavit, respondent alleges the legal existence of the Rousseau school district; that Rousseau, Doyle, and Purington were the duly elected or appointed, qualified, and acting members of the school board of said district, and constituted such board, and that no other person acted or pretended to act thereon, or claimed a right to do so; that said board, by written contract, signed by said board and respondent employed respondent, who was then and there a legally qualified and licensed teacher, to teach the school of said district for two months, at $32.50 per month; that she taught said school in pursuance of said contract, and received therefor from said board two certain school orders, in the usual form, for $32.50 each, issued by said board signed by Rousseau as, and who was, chairman, and Doyle as, and who was, clerk, and directed to appellant, Purrington, as, and who was, treasurer, of said school district; that said warrants were severally presented for payment to said Purrington as treasurer, who refused to pay the same, although he then had as such treasurer unappropriated school moneys in his hands, from which said orders should have been paid, and that he also refused to indorse said warrants “Not paid for want of funds.” To this petition the defendant, Purington, answered, omitting an unimportant statement as to what was paid by him when the orders were presented, as follows: “I, the said R. E. Purington,treasurer of Rousseau school district,' do answer and return to the above named circuit court that I deny each and all the allegations in the affidavit of the plaintiff, Jessie Hardy, upon which the application for a peremptory writ of mandamus in this case is based, contained, except such as hereinafter admitted or qualified. I admit that during all the time mentioned in said affidavit, that Rousseau school district Ño. 14, of Hughes county, South Dakota, was, and is now, a school district existing under the laws of the state of South Dakota. I admit that on the 29th day of April, 1892, M. C. Rousseau and R. E. Purington were duly elected and qualified members of the school board of Rousseau school, district No. 14, and were such members of said school board until the last day of July, 1892. I admit that I am now, and was during all the times mentioned in said affidavit, the duly elected, qualified, and acting treasurer of said Rousseau school district. I deny that on the 29th day of April, 1892, or at any time, that John Doyle was a duly elected or appointed and qualified member of said school board of said school district; and further deny that he was during the times mentioned in the affidavit the duly elected or appointed and qualified clerk of said school board, or of said school district. * * * I deny that I have sufficient money in my hands at this time, or that I had sufficient at the time this action was commenced, as treasurer of said district, to pay the warrants mentioned in the complaint, and return to this court as one defense to the issuance of a peremptory writ of mandamus, as prayed for by the plaintiff herein, that I have not sufficient funds in my hands as treasurer of said school district to pay said warrants, and further return that I have'on hand and in my possession, as treasurer of said school district, the sum of but two and 89-100 dollars ($§.89.)” Por a further return and answer, the said defendant alleges: “(1) That on the 19th day of March, 1892, pursuant to a call regularly and duly made, a special meeting of the qualified electors of said Rousseau school district No. 14 was regularly and legally held at the school house in said district; that said qualified electors of said district, by resolution, regularly and legally passed, instructed the district school board of said district not tp hire a teacher or move the school house, establish or sign any contract for the teaching of a school, until the next regular meeting of said board; that there was during all the times mentioned in relator’s affidavit but one school in Rousseau school district; and that the said Rousseau district school board had but one school under its control. (2) That the said school board had actual notice of the action of the qualified electors of said school district and of said resolution. (3) That in defiance of the aforesaid action of the qualified electors of said district, and of said resolution passed as aforesaid, M. C. Rousseau, the then chairman of the district school board of said school district, and one John Doyle, pretending to act as clerk of said school board of said school district, on or about the 4th day of May, 1892, and before the next regular meeting of the school board of said district, after the said meeting of the qualified electors of said district, had, as aforesaid, on the 19th day of March, 1892, made a pretended contract with the plaintiff in this case to teach a term of school in said Rousseau township, at Rousseau school house, for a term of two months; that the two warrants mentioned in the affidavit of plaintiff, are warrants which were issued to the said Jessie Hardy, the plaintiff, under the said pretended contract entered into on or about the 4th day of May, as aforesaid.” Upon the pleadings the court gave judgment for respondent awarding a peremptory mandamus, and from such judgment this appeal is taken.

Respondent moves to set aside the recprd transmitted to this court, for the reason that the record is not what is authorized by law to be sent up, and for the further reason that what is sent up is not authenticated as required by statute; the. precise point of the first ground being, as we understand, that the clerk does not certify, as required by section 5217, Comp. Laws, that the papers transmitted were the papers used upon the hearing before the trial court; but this is not neccessary when the appeal is from a judgment, and the judgment roll only is transmitted. See first paragraph of said section 5217. We think the decision of the court in this case was a judgment. The several sections of the statute regulating mandamus proceedings before a court contemplate a trial by the court either with or without a jury,, and the decision of the court is a -judgment. Comp. Laws, Sec. 5527. A judgment in a-special proceeding is the final determination of the rights of the parties therein. Id. Sec. 5506. In this case we notice incidentally, as shown by the abstract, respondent ‘ ‘moved the court for judgment,” and the court sustained the motion, and from this “final determination” this appeal is taken. The provisions of' the Code in respect both to pleadings and the record on appeal, so far as they are consistent with this proceeding, are applicable thereto. Comp. Laws, sections 5535, 5536. It seems therefore a reasonable, if not a necessary, conclusion that the record upon which this appeal is to be heard is the affidavit or petition of the plaintiff (there having been no alternative writ), the answer of the defendant, and the judgment rendered by the court; in other words, the judgment roll proper. In such case no authentication is required but the certificate of the clerk that the papers so transmitted are the originals or copies, if copies are by the trial court directed to be sent in lieu of the originals and that the same are transmitted pursuant to the appeal. Section 5535. The papers in this case are so certified, and., a certified copy of the order of the trial court directing copies, instead of the originals, to be transmitted, is attached. This seems to make a good record, as required by the statute, and the motion must be denied. This brings us to the merits.

Section 5521, Comp. Laws, provides that in a case like this the party against whom the writ is asked “may show cause by answer under oath, made in the same manner as an answer to a complaint in a civil action.” It would appear, then, that •whether or hot this judgment can stand must depend upon 'whether or not the affidavit contains sufficient allegations of facts nndenied by the answer, and so admitted by force of the statute, to entitle the respondent to judgment. The answer so far as it attempts a general denial is: “I deny each and all the allegations in the affidavit of the plaintiff * * * contained, except such as are hereinafter admitted or qualfied. ” The respondent contends that this form of denial is not authorized or recognized by our statute, and is no denial at all, but is in legal effect an admission of the allegations of the affidavit. To support this contention, a number of California cases are cited. These cases generally condemn what they style “conjunctive denials.” The meaning of this term when so used, seems tobe made plain by such cases as Doll v. Good, 38 Cal. 287, where the headnote says: ‘ ‘If several material facts are stated conjunctively in a verified complaint, an answer which undertakes to deny their averments as a whole, conjunctively stated, is evasive, and an admission of the allegations thus attempted to be denied.” There are other cases, like Hensley v. Tarter, 14 Cal. 508, which go further, and hold, as stated in the headnote -to that case:. “Where a complaint is verified, an answer denying generally and specifically each and every material allegation in the complaint, the same as if such allegation were herein recapitulated, and also denying each allegation in the same form, with certain qualifications and exceptions, does not raise ■an issue Upon any fact stated in the complaint.” Such rulings -seem to have been made in view of a provision of their practice act, which is essentially different from anything in our Code. Their -section 437, Code Civ. Proc., after providing, like ours, that the answer may contain á general or specific denial, further says that, 1 ‘if the complaint be verified, the. denial of each allegation controverted must be specific and be made positively, or according to the information and belief of the defendant. * * * If the complaint be not verified, a general-denial is sufficient, but only puts in issue the material allegations of the complaint.” It further appears that the case last, cited and others like it were controlled by their then section 65 of the practice act, which provided that ‘‘every material allegation of the complaint when it is verified, not- specifically controverted by the answer, shall, for the purposes of the action be taken as true. ” It is plain, therefore, that we cannot safely follow the California decisions in determining what form of answer is sufficient to put in issue the allegations of the complaint; for their law, unlike ours, requires a specific, as distinguished from a general, denial to a verified complaint. Our section 4933, Comp. Law, corresponding to the California provision last quoted, is that ‘ ‘every material allegation of the-complaint not controverted by the answer, as prescribed by section 4914,” shall be taken as true. To determine what sorb of an answer does controvert any allegation of the complaint, reference must be had to said section. 4914. So far as here involved it is as follows: -‘The answer of the defendant must contain (1) a general or specific denial of each material allegation of the complaint controverted 'by the defendant. ” Authorities from states having the same provisions as ours, in respect to the form of the answer, leave no doubt of the sufficiencv of the answer to put in issue the allegations of the plaintiffs affidavit, unless its effect is destroyed by the words ‘‘except such, as are hereinafter admitted or qualified.”

This question has been the subject of much discussion, and" has apparently given the courts considerable trouble-. Wq think the general view has been that while such pleading ought not to be encouraged, and will often subject the pleader to a motion to make more definite and certain, still, where- it is. reasonably plain what allegations are intended to be controverted and what admitted, no objection to snch answer being made by motion or otherwise, the form of the answer, though not specifically recognized by the Code, will be tolerated, and held to raise an issue on such allegations as can fairly be included as objects of the general denial. See Parshall v. Tillou, 13 How. Pr. 7; Smith v. Wells, 20 How. Pr. 158; Greenfield v. Insurance Co., 47 N. Y. 430; Kingsley v. Gilman, 12 Minn. 515 (Gil. 425); Leyde v. Martin, 16 Minn. 38 (Gil. 24); Matteson v. Ellsworth, 28 Wis. 254. Such form of denial is frequently used in this state by lawyers recognized as good practitioners, and a decision of this court, without premonition to the bar, that s'uch an answer is in legal effect an admission of the allegations of the complaint, even if it should finally and properly be so held, — as to which we express no opinion, — would be unjust and wrong to litigants whose attorneys, under the sanction of a'common practice, have so pleaded. The purpose of the answer is' to inform the plaintiff of what allegations in his complaint are denied, s.o that he may know what he must be prepared, on the trial to prove. If the answer leave him in doubt, he may move to have it made more definite and certain, or possibly it may be assailed by demurrer; but, if unobjected to in any manner, we think it would be going too far at this time to abruptly hold that such an answer is an admission, instead of a denial, as''was evidently intended. There is no doubt that such form of answer is too often used. The cases in which it is justifiable, if there are such, are exceptional and infrequent, and the better and safer practice is to adhere closely to the precept of the Code.

We think in this case the answer must be treated as denyihg all the allegations of the complaint not thereinafter “admitted or qualified.” . So treating the answer, it follows that the allegation of the affidavit that plaintiff was a licensed and qualified teacher at the time of making the alleged contract stands denied by defendant’s answer, f.or such allegation is nowhere in the answer referred to or excepted from the scope of the general denial. The answer denies ‘ ‘each and all the allegations” not thereinafter “admitted or qualified.” There is neither an admission of this allegation nor any attempt to qualify it. It therefore remains denied. Matteson v. Ellsworth, supra. Appellant claims the same is true of other material allegations, but as to those named by him, except this one, we should have considerable doubt. Section 5 of chapter 2 of an act to establish a uniform system of education, being chapter 56 of the laws of 1891, and in force when this .contractis alleged, to have been made, forbids the employment of any teacher not the holder of a lawful certificate, and makes any attempted contract with such unqualified teacher void. Upon the pleadings, as we interpret them, it is denied that plaintiff held such a certificate. The possession of such a certificate was a sine qua non to plaintiff’s capacity to make the contract. Without such qualification, the contract itself was void, and could not justify, nor be the basis of, issuing a warrant by the board. If the contract was void, it imposed no liability upon the school district, and a warrant assuming to represent a liability which did not exist would be illegal. Such a warrant the treasurer was under no obligations to pay, although appearing upon its face to be regularly drawn. Respondent’s contention that the functions of the treasurer were simply ministerial, and that it was his legal duty to pay or .accept all warrants or orders appearing to be regularly drawn, is not tenable. He was not obliged to accept orders illegally drawn, and the courts will-not by mandamus compel him to do so. Evans v. Bradley (S. D.) 55 N. W. 721; Keller v. Hyde, 20 Cal. 593; High, Extr. Rem. 285. We are' sorry to be obliged to reverse this case upon this point, for we suspect that the real ground upon which the defendant treasurer refused to pay these orders was' the claim that Doyle', the clerk who drew the orders, was not the legal clerk of the district. While we do not decide that the affidavit and answer leave it admitted ‘that he was the acting.and recognized clerk, we are of the opinion that, the fact he was the clerk de facto being established, either by the pleadings or by proof, the orders would be valid, although he might not be the de jure clerk. Of course, it must appear, either by admission or by proof, not only that he signed these particular orders'as clerk,, but that he was acting as the clerk of the district, and that his acts as such were acquiesced in and recognized by the people generally as • official. Under such conditions, it would not affect his official acts, when only collaterally involved, that he was not legally elected or appointed. The view we take of the effect of the pleadings necessitates a reversal. The judgment is reversed, and the case remanded for further proceedings according to law.

Fuller, J., took no part in the decision of this case.