Salt Lake City v. Salt Lake Inv. Co.

134 P. 603, 43 Utah 181, 1913 Utah LEXIS 61

Opinion

PRICK, J.

This is a proceeding in equity to set aside and annul a judgment. The facts upon which relief was asked, briefly stated, are as follows:

That the plaintiff is a municipal corporation, and the-defendant is a private corporation. That on the 26th day of October, 1869, the plaintiff by purchase and proper deeds of conveyance from the then owners acquired the title in fee to certain real estate situate in Salt Lake County,, Utah, which is fully described in the complaint, and which, deeds, it is alleged, were duly recorded in Salt Lake County in the month of August, 1870. That thereafter Salt Lake-County unlawfully sold the real estate aforesaid for taxes, and that pursuant to said tax sales the auditor of said county pretended to convey a portion of said lands to the defendant and that the defendant through certain tax sales and tax sale certificates, unlawfully made .and issued by said county,, claimed ownership of all the lands in controversy. That at all times since 1869 all of said real estate sold to and claimed by the defendant as aforesaid was exempt from taxation. That thereafter, on the 17th day of October, 1905, the defendant, claiming to be the owner, and basing its claim of ownership upon the tax deeds and tax sale certificates aforesaid, commenced an action in the district court of Salt Lake County, which action was designated as No. 7608, to quiet the title to the lands in question in itself. That the plaintiff was made a party to said action and was duly served with summons, and by its attorneys entered an appearance therein by filing a general demurrer to the complaint. That thereafter, and without having said demurrer disposed of, said attorneys, representing the plaintiff herein as one of the defendants in said action, entered into a pretended agreement with the plaintiff in that action, who is the defendant in this action, whereby the said attorneys agreed to and did in behalf of the plaintiff herein file a disclaimer in said action in which the plaintiff disclaimed all right, title, and interest in and to said real estate except a right of way over a portion thereof, which right of way was to be and was fully defined in the decree quieting the title in the plaintiff, and said attorneys then and there stipulated that the court should enter a decree quieting the title in and to said real estate (except the said right of way) in the plain-' tiff in said action, which decree was accordingly entered. That the plaintiff herein now has and always has had a “good and meritorious defense” to said action No. 7608, and now is and always has been “the owner in fee simple of the property mentioned in the decree aforesaid.” That the defendant herein well knew that the plaintiff herein had a good defense to said action by reason that said lands were exempt from taxation. That the attorneys aforesaid although at said time were the attorneys for Salt Lake City, the plaintiff herein, they nevertheless had no authority to enter into any agreement of disclaimer or to file any disclaimer on behalf of the plaintiff herein in the action aforesaid. That said pretended disclaimer was unauthorized and was a nullity, and that the demurrer interposed by said attorneys on behalf of the plaintiff herein still remains pending and undisposed of. That the defendant herein well knew “that it had no legal right, claim, title, or interest of any kind, nature, or description in or to the property described in the plaintiff’s complaint in said action, and well knew that the pretended agreement and disclaimer filed therein by the then city attorneys was false and untrue, and well knew that the then city attorneys had no authority, right, or warrant of law whatever for making or entering into said agreement or filing the said pretended disclaimer/’ and that by concealing the facts from the court the defendant herein “procured the judgment and decree” in said action. “That this plaintiff, relying on its attorneys to protect its interests in said ease No. 7608, and having no notice or knowledge that they had exceeded their power or authority, or that they had entered into the pretended agreement aforesaid, or filed the pretended answer and disclaimer as alleged, and having no notice or knowledge of the facts as hereinbefore alleged, or reason or occasion to make or •cause to be made any investigation, or to be put upon inquiry in the premises, and being lulled into security by its said attorneys up to and including February 20, 1912, when the record in said ease was examined by this plaintiff’s attorney.”

The disclaimer mentioned above was set forth as an exhibit and made a part of the complaint. It reads as follows:

“Comes now Salt Lake City, one of the defendants in the above-named action, and, upon agreement that the decree herewith submitted to the court be signed, disclaims any and all interest in and to said premises except such as are vouschafed to it by said decree.”

The foregoing disclaimer was properly subscribed by the attorneys for appellant, and was indorsed by the clerk as follows: “Filed Nov. 25, 1905.” The date aforesaid was also the date on which'the decree was signed. The plaintiff herein also attached to the complaint as exhibits the findings of fact, conclusions of law, and decree in case No. 760-8.

The defendant demurred to the complaint for want of facts, and also for the reason that under our statute the action was barred by the provisions of Comp. Laws, 1907, section 2877, subd. 4, and further that plaintiff cannot recover because it has been guilty of laches and negligence. The district court sustained the demurrer, and, the plain tiff' baying elected to stand upon its complaint, tbe court entered judgment dismissing tbe action, from wbicb judgment tbe plaintiff appeals. Tbe rulings of tbe court in sustaining tbe demurrer and in entering judgment as aforesaid, are assailed as error.

We remark that appellant concedes that its attorneys-aforesaid were its duly authorized attorneys; but it nevertheless insists that they were without authority to file tbe disclaimer or to consent to tbe decree aforesaid.

1 Tbe first contention made is that tbe court should have set aside tbe judgment entered in case No. 7608 for the-reason that some of tbe defendants in that action were nonresidents of tbe State of Utah and as such were not legally served with summons, because tbe affidavit upon wbicb tbe order for service by publication was based was insufficient to justify service by publication, under tbe rule adopted by this court in Liebhardt v. Lawrence, 40 Utah, 243, 120 Pac. 215. Although it were conceded that tbe affidavit for service -by publication comes within tbe rule laid down in tbe Liebhardt Case, supra, yet tbe consequences contended for by appellant would not necessarily follow. It appears from tbe complaint and exhibits that case No. 7608 was an action to quiet title to- real estate;, that there were several parcels of real estate in wbicb it was alleged various parties who were made defendants-claimed some interest; that not all of tbe parties claimed to be or were interested in tbe same parcel; but it was alleged that all of tbe defendants claimed some interest in-some one or perhaps more of tbe parcels described in tbe complaint. It also appears that so far as tbe appellant is concerned it alone was interested in and made claim to tbe parcel of land involved in this action, and hence so far as tbe other defendants were concerned it made no difference whether they were made parties to that action or not. Indeed, appellant by its conduct at least tacitly concedes this much, since, if tbe parties referred to by it were indispensable parties to tbe former action in so far as tbe real estate in question is concerned, they would like wise be necessary parties to this action, and yet appellant seems to have thought that all rights to the real estate involved here can be adjusted without them. Be that as it may, the most that can be said is that in case No. 7608 there was a defect of parties defendant, or, to state the defect more accurately, a misjoinder of causes of action, and under our statute (Comp. Laws 1907, section 2967) such a defect in no way affects the jurisdiction of the court or the rights of the parties; but in case objection is not made ■either by special demurrer or by answer the defect is waived, ■and neither party can avail himself thereof after judgment. We need not inquire, therefore, whether or not the service upon any one or more of appellant’s codefendants in the former action was good or bad.

In this connection it is urged that under the ruling in the Liebhardt Case, supra, the judgment or decree in case No. 7608 is void as to those defendants not properly served with summons by publication, and since it is void as to them it is void as to all who were defendants in that action, of whom appellant was one. In support of this contention counsel cite 1 Black on Judgments (2d Ed.) section 211. It is true that the author of that work there says that many courts have held that where a joint judgment is void as to one it is so as to all defendants; but the author, also points out in the same section that the courts are very much divided upon the question, and then cites about as many cases in which such a rule is repudiated as of those in which it is upheld. But for the reasons already stated we need not now pass on what the effect of a joint judgment which is void as to one defendant would be, since we have seen, that in view of the separate interests of the different defendants the doctrine applicable to joint judgments can be given no effect.

2, 3' It is next contended that the court had no jurisdiction to render the judgment because the disclaimer filed by appellant’s attorneys in case No. 7608 was unverified. We do not think so. It is true that Comp. Laws 1907, section 2983, provides “when the complaint is verified ... all subsequent pleadings except demurrers must be verified.” ’ The statute, however, does not impose any consequences in case a. pleading is not verified, and where such is the case the defect may be and, unless timely objection is made upon that ground, is waived, 31 Cyc. 732. The same section also provides that pleadings must be subscribed by the party or his attorney, yet notwithstanding that fact we have held that such a defect may be waived. (Lime & Stone Co. v. Danley, 38 Utah, 218, 111 Pac. 647). See, also, to the same effect, 31 Cyc. 732. Moreover, Comp. Laws 1907, section 3512, provides that a defendant may file-a disclaimer, and if one is in fact filed although not verified we cannot see why, if acted on, it is not as effective as though, it were verified. At all events it in no way affects the court’s jurisdiction or power to act. The disclaimer that is objected to was, however, filed by the appellant. If, therefore, the objection were permitted, it would result in permitting a party to take advantage of its own defective pleading after its defect was waived by its adversary and disregarded by the-court. This may not be done when, as here, the defect is not jurisdictional.

4 What has been said also disposes of the contention that the general demurrer interposed by appellant in case No. 7608 is still pending. By filing the disclaimer and consenting to the judgment appellant waived its right to have the demurrer passed on by the court. After it had filed the disclaimer and by the judgment obtained all it asks for it was no longer concerned whether the complaint was defective or not, and, so long as counsel do not contend that the complaint in the former action was so defective in substance as to deprive the court of power to render a judgment, the defect, whatever it was, is immaterial. In any event the right to a ruling on the demurrer was waived. 31 Cyc. 749. Prom what has been said it follows that appellant’s contention that the judgment in case No. 7608 is void for want of jurisdiction cannot prevail.

5 This brings us to the only real question in the case, namely, Is this action barred by the provisions of the statute of limitations and by reason of laches and lack of diligence on the part of appellant in commencing it? Comp-. Laws 1907, section 2877, snbd. 4, in fixing the time witbin which an action for relief snch as is sought in the present action must be commenced, provides:

“An action for relief on the ground of fraud or mistake, three years; the cause of action in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud or mistake.”

By the allegations in the complaint which we have quoted in full appellant seeks to bring this case within the last clause of the foregoing subdivision, namely, that it did not discover the facts constituting the alleged fraud or mistake until a short time before this action was commenced. Considering the complaint as a whole, as we must, it is very clear that the allegations respecting the want or lack of knowledge or information on the part of appellant are in the main mere conclusions of law and not a- clear and concise statement of fact from which the lack of knowledge or information is deducible. Such general statements have frequently heen condemned and held insufficient as a pleading of the facts which show a want of knowledge or information concerning the alleged fraud or mistake. In the following cases the question is carefully considered: Kessler v. Ensley Co. (C. C.) 123 Fed. 563; Wood v. Carpenter, 101 U. S. 140, 25 L. Ed. 807; Ware v. Galveston, 146 U. S. 102-116, 13 Sup. Ct. 33, 36 L. Ed. 904; Boone County v. Burlington, etc., Ry. Co., 139 U. S. 685. 11 Sup. Ct. 687, 35 L. Ed. 319; Lady Washington Co. v. Wood, 113 Cal. 482, 45 Pac. 809; Foster v. Mansfield, etc., Ry. Co., 146 U. S. 88, 13 Sup. Ct. 28, 36 L. Ed. 899; Pearsall v. Smith, 149 U. S. 231, 13 Sup. Ct. 833, 37 L. Ed. 713; Lataillade v. Orena, 91 Cal. 565, 27 Pac. 924, 25 Am. St. Rep. 219; Bills v. Silver King Min. Co. 106 Cal, 9-19, 39 Pac. 43. See, also, Hiles v. Mosher, 44 Wis. 601; Ayers v. Morehead, 77 Va. 586; Broda v. Greenwald, 66 Ala. 538; Darling & Moore v. Mayor, etc., of Baltimore, 51 Md. 1; and Electric L. Co. v. Leiter, 19 D. C. 575.

In Shain v. Sresovich, 104 Cal. at page 405, 38 Pac. at page 52, tbe Supreme Court of California, in passing upon tbe effect of a statute of wbicb tbe portion we bare quoted above is an exact transcript, says:

“The rule is well established that the means of knowledge is equivalent to knowledge, and that a party who has the opportunity of knowing the facts constituting the fraud of which he complains cannot be supine and inactive, and afterwards allege a want of knowledge that arose by reason of his own laches or negligence.”

To tbe same effect are Deering v. Holcomb, 26 Wash. 595, 67 Pac. 242, 243; Hecht v. Slaney, 72 Cal. 363, 14 Pac. 88; and Ratliff v. Stretch, 130 Ind. 282, 30 N. E. 30.

6 It is also a well-recognized rule that all tbe consequences of notice, lacbes, and lack of diligence apply to a municipal corporation with tbe same effect that those matters do to private corporations or individuals. (Royston v. Horner, 75 Md. 557-567, 24 Atl. 25; Boone County v. Burlington, etc., Ry. Co., supra; Dunklin County v. Chouteau, 120 Mo. 577-596, 25 S. W. 553; Hill v. Mendenhall, 21 Wall. 454, 22 L. Ed. 616; Matthis v. Town of Cameron, 62 Mo. 507.)

7, 8, 9 In tbe cases last cited it is also clearly beld that municipal corporations are bound by tbe acts of tbeir attorneys precisely tbe same as private corporations or individuals would be, and in tbe absence of fraud or collusion on tbeir part attorneys bave power to bind tbeir clients, including municipal corporations, by consenting to judgments or decrees. It will be observed that in tbe ease at bar appellant does not charge its former attorneys either with having been guilty of fraud or collusion in any manner or to any extent. Tbe whole fraud alleged consists in respondent’s claim of title or right to tbe property in question by means of its tax title and tax sale certificates, when, as contended by appellant, it very well knew that tbe property was exempt from taxation, and hence no claim to tbe land could be based upon a tax deed or tax sale certificate. But assuming that respondent knew all of this tbe question still remains to be answered, Did not appellant also know it? How can appellant excuse its long delay in bringing tbis action in view of tbe fact that it was a party to the very judgment it now seeks to set aside and must have known then as well as when it commenced this action that its property was immune against all taxes. It also must have known upon wha,t claim the decree quieting the title to the property in question in the' respondent was based. The mere fact that there is a rotation in city officers where the outgoing officers have not been guilty of fraud or collusion with regard to-the matter in litigation cannot and does not excuse delay beyond the statutory time. Not a single case is cited by appellant, and we think none can be found, where a court of equity granted relief in a ease where the facts and circumstances were anything like in the case at bar. Many cases can be found, however, where, under facts and circumstances much stronger than those in this case, relief was denied upon the express ground of laches, want of diligence, and the statute of limitations. In the following cases the courts squarely hold that for the reasons aforesaid m> relief can be granted: Pearsall v. Smith, supra; Hecht v. Slaney, supra; Foster v. Mansfield, etc., Ry. Co., supra; Deering v. Holcomb, supra.

If courts of equity interfered with judgments under facts and circumstances as alleged in the complaint before us, they would create infinitely more mischief and harm than they could avoid or cure by their interference. Moreover, in doing so they would in effect repeal the salutary effects of the statute of limitations, the purpose of which is to prevent the reopening of stale claims or demands of any kind or character, even in cases of fraud or collusion, when the means of discovering the facts constituting the fraud are at hand. Again, if it were once judicially determined that a party to an action could, for the reason stated in the complaint, repudiate the authority of his attorneys and escape from the consequences of their admissions made during the progress of the cause, there would be no end to litigation. Just so long as a.party could employ other lawyers to represent him, be would refuse to be bound by the acts of those be bad employed before, in case be was dissatisfied witb sucb acts. How may courts know that attorneys are authorized except by their acts and conduct, in the absence of any claim that they are not authorized? Courts have a right to presume and do presume that attorneys are duly authorized to do what they assume to do in a particular case, and this presumption prevails until the contrary is made to appear; and, where a client has stood by and has permitted both courts and others to act upon this presumption, he may,’ under certain conditions, be estopped from assailing the authority of his attorneys. If the authority of attorneys can be assailed and overcome as easily as counsel for appellant seem to think, how could we bind the appellant by anything counsel have done in this case? A mere statement of the proposition shows how utterly unsafe and unstable judgments would be if such a course were followed.

It would subserve no useful purpose to review or even to refer to the many cases cited by counsel for appellant in their brief. It may be conceded that under the facts and circumstances disclosed by those cases they are correctly decided. None of them can, however, be given any effect in the case at bar.

The ruling of the district court in sustaining the demurrer and in rendering judgment dismissing the complaint are clearly right, and should be affirmed.

Such is the order. Costs to respondent.

.McOARTY, C. I., and STRAUP, J. concur.