Western Clay Drainage District v. Day

SMITH, J., (after stating the facts). A very forceful argument is made in the brief of counsel for the landowners to the effect that the courtl below erroneously held the cause of action for the recovery of the $2,000 item to be barred by the statute of limitations; and that| the court was also in error in holding that the land owners bringing this suit had no right to call the directors to account for the loans of money belonging to the sub-districts in which they owned no land. These land owners, however, prayed no cross-appeal, and as no one else raises these questions we dispose of them by saying that they are not| properly presented for our decision. In this connection, it might be said that the drainage district, which has appealed and which could, therefore, raise these questions, has not done so. It is not the practice of this court to search out and decide all the questions which might be said to be presented by a particular record. In private litigation the court is content to pronounce judgment upon those questions only upon which a decision is invoked. Both Hopson and McCracken have appealed from so much of the decree of the court below as holds them per-. sonally liable for the loans of money made in contravention of the statute. But we think the decree in this respect should be affirmed. The act prescribed the terms upon which the funds of the district might be loaned, and if the directors wished to escape any personal liability on that account they should have complied with the law in making these loans. Inasmuch as they elected to loan the money upon terms fixed by themselves rather than upon the terms prescribed by law, the loans must be treated as if they were unauthorized by law and the directors held responsible for any loss thus incurred. Director McCracken seeks to escape this liability by saying that he was not a director when the loans were originally made. 'But it affirmatively appears thatl he was present at a director’s meeting at which the land owners requested the directors to bring suit or to authorize suits to be brought to recover t|he unlawful loans, and Mc-Cracken refused to consent to this action upon the ground that such suits would result in a receivership for the entire district; and further that he thereafter consented to the renewal of various loans as they matured, without taking the security required by the law. It is very earnestly insisted on behalf of the drainage district that the court below should have stricken the answer and cross-complaint of Oliver from the files, and that the fee finally allowed him was excessive. And upon his cross-appeal Oliver insists that the fee allowed was inadequate. In support of his contention that the fee allowed him was inadequate Oliver insists thatl we should consider the testimony taken in his behalf and found in certain depositions which have been brought up by certiorari. The cause appears, however, to have been submitted to the court for decision on the 25th of June, 1918, and the depositions were taken between that date and July 18, the date on which the court below pronounced a final decree. The court had previously fixed the time within which the testimony should be taken and had apportioned a given number of days to each of the parties. This time had expired some days before the cause was submitted, and during the allotted time much testimony was taken, and it does not appear that the court was requested to extend the time for further proof before taking the case under submission, and no abuse of discretion is shown in the failure of the court below fo reopen the case for the purpose of considering testimony which was taken without authority. As the testimony was not properly before the court below we can not consider itl now. The point is made that the board of directors of the district was not properly in session when the contract for Oliver’s employment was entered into. This point is answered, however, by saying that! thereafter the district continued to accept Oliver’s services as if a valid contract therefor had been made, and we proceed to consider the value of these services as shown by the testimony taken on that issue. Before doing so, however, we take occasion to say that no error was committted in refusing to strike Oliver’s answer and cross-complaint from the files. The complaining land owners had alleged in their amended complaint the sum of money loaned Oliver, and there was no controversy about the correctness of the sum alleged to have been loaned him. And while the land owners did not ask judgment| against Oliver for this sum they did ask judgment against the directors for having loaned Oliver the money stated, and it, therefore, appears that in the proceeding to which Oliver was made a party, judgment was prayed against t(he directors for the money loaned Oliver. So that even if Oliver were not a necessary party he was a proper party to have before the court in adjudicating the liability of the directors for money loaned him; ¡and while the directors against whom the judgment was asked on account of their loan made to Oliver were the parities who asked that the cause of action as against Oliver be dismissed, we think no abuse of discretion is shown by the failure of the court to dismiss the cause as to Oliver. Oliver took the depositions of seven lawyers on t|he question of the fee he was entitled to charge, and all these witnesses placed the fee at a larger sum than the charge made. On behalf of the district the testimony of eight! lawyers was taken, all of whom placed the fee at a smaller sum than Oliver sought to charge. The testimony of the attorneys in Oliver’s behalf was taken in response to a hypothetical question prepared by him, and that in behalf of the district upon a hypothetical question prepared by the attorney for the district. These questions were lengthy and will not be restated here; but upon a comparison of the two hypothetical questions we are of the opinion that the question propounded by Oliver presents more fully than the other the facts in the case upon which the opinion of the attorneys should have been based. Briefly restated, these facts are as follows: This court, in the case of Caton v. Western Clay Drainage District, 87 Ark. 8, upheld the validity of the organization of this drainage district and the assessment of the benefits thereunder. Later, in the case of Martin v. Reynolds, 125 Ark. 163, we decided that a special statute creating a certain drainage district was void on its face for the reason that it made an unauthorized discrimination in the property to be assessed for taxation to pay for the improvement authorized. The section of the statute condemned in the last cited case was an exact copy of a section of the act creating the Western Clay Drainage District. Thereafter the land owners who brought this suit, together with other land owners of the district, employed counsel to resist the collection of further assessments of benefits against the lands in this drainage district. It was shown that these land owners had agreed tlo pay these attorneys a given per cent, of the assessments then remaining unpaid in the event that the proposed litigation was conducted to a successful issue. The fee thus contracted for would have approximated ten thousand dollars. At that tlime the district had been in operation for nine years and had issued and sold bonds to the amount of $419,000, and practically all of its work in four subdistricts had been completed by the expenditure of more than $300,000, and about 145 miles of ditches and 25 miles of levees had been constructed. Itl was shown by the testimony of the engineer of the district that the annual cost of maintenance of the completed work was from three to five thousand dollars and that! the assessed and actual benefits of the improvement to the property in the district largely exceeded their cost and that their value depended on their maintenance and upkeep. Oliver conducted this litigation do a successful issue as appears from the decision of this court in the case of Curtis v. Hopson, 127 Ark. 344, and we can not say that the action of the chancellor in allowing a fee of $2,000 for the services performed was contlrary to' the preponderance of the evidence in the case, or that a larger fee should have been allowed, and the allowance of that fee will, therefore, be affirmed. No reversible error appearing, upon a consideration of the whole record, the decree of the court below will be affirmed.