Cushman v. Warren-Scharf Asphalt Paving Co.

MACK, Circuit Judge (after stating the facts as above). It is unnecessary for us to consider either the applicability of the act of 1909 to special assessment proceedings begun under acts other than that of 1905, its constitutionality, if given retroactive effect, or the unconstitutionality of the foreign corporation act of 1879 (Burns’ R. S. 1908, § 4105), in view of the conclusion reached, that the judgment of the United Statés Circuit Court, affirming the right and duty of the city to levy assessments, was, under the pleadings in the case, within its jurisdictional power, and that it is therefore res adjudicata as to those questions, all of which were, necessarily litigated in and determined thereby in favor of appellee, both as against the city, the party defendant therein, and as against appellants as privies thereto. Bradley Co. v. Eagle Co., 57 Fed. 980, 6 C. C. A. 661. [1] First. While appellants assert that they were neither parties nor privies to the case in the Circuit Court, the conceded facts demonstrate that they were privies thereto, inasmuch as the entire defense was conducted by them, with the city’s consent, at their own request, and in their sole interest, as the parties e'ventually and directly obli-" gated to pay any judgment that might be rendered against the city. “The case is within the principle that one who prosecutes or defends a suit in the name of another to establish and protect his own ri'ght, or who assists in the prosecution or defense of an action in aid of some interest of his own, and who does this openly to the knowledge of the opposing party, is as much bound by the judgment and as fully entitled, to avail himself of it as an estoppel against an adverse party, as he would be if he had been a party to the record. Love joy v. Murray, 3 Wall. 1 [18 L. Ed. 129].” Per White, C. J., in Souffront v. Compagnie des Sucreries, 217 U. S. 475, 487, 30 Sup. Ct. 608, 612 (54 L. Ed. 846). [2] Second. Since the case of Jordan v. Cass County, 3 Dill. 185, Fed. Cas. No. 7,517, and for reasons fully stated by Judge Taft in Fuller v. Aylesworth, 75 Fed. 694, 21 C. C. A. 505 (C. C. A., 6th Circuit), it is settled law that, though the federal courts are without jurisdiction to entertain an original mandamus suit, they have jurisdiction in an action at law against a public corporation to render a judgment in the very form followed by the Circuit Court, on bonds and drainage orders issued by or on behalf of a county, but payable, under the law of the state, solely from taxes or special assessments to be levied against a limited district within the county, and that, too, though by statute a mandamus proceeding is the only remedy available in the state courts. While, in the reported cases, such actions have been formally based upon a debt evidenced by a written contractual obligation under which the county, usually, but not always, appears as the nominal, though never as the real, obligor, in substance, as the opinions expressly state, they” are merely substitutes for original mandamus, devised and sanctioned to enable the federal courts to exercise a proper jurisdiction. [861] and, as such, they are based upon the failure of the defendant to perform its statutory obligation of levying the taxes or assessments and paying over the fund to the creditor. Indeed, in Aylesworth v. Gratiot County (C. C.) 43 Fed. 350, in which the action was, in form, on orders issued for drain work payable, like the work of appellee, only through special assessment, Mr. Justice (then Judge) Brown said: “My only doubt in this connection is whether the declaration should not count upon the failure of the board of supervisors to take the proper proceedings for the levy and collection of this tax. The state courts have repeatedly held (hat no action as for a debt will lie against the municipality upon these warrants.” [3] The complaint on which the instant judgment was rendered was expressly based upon the obligation of the city to levy the special assessment and pay over the fund; if it had concluded with the allegation that the defendant thereby became indebted to the plaintiff to the amount of such unpaid assessments and had prayed a judgment therefor, then clearly, within the precedents, no judgment other than in the form adopted by the Circuit Court would have been valid and proper. That the plaintiff asserted in his complaint a failure of the defendant to discharge a duty owing to the plaintiff, and its liability in damages because of the neglect of its statutory obligations, and in the prayer asked for damages, does not limit the jurisdictional power of the court to render such a judgment as the facts recited in the complaint would justify. Especially is this so when, as in this case, because of the statutory provisions exempting the city from liability and declaring the special assessment fund the sole source of payment, a general judgment against the city either in debt or in damagesi would have been erroneous (City of Pontiac v. Talbot Paving Co., 94 Fed. 65, 36 C. C. A. 88, 48 L. R. A. 326; Id., 96 Fed. 679, 37 C. C. A. 556), and when, in addition to the specific prayer for damages, the plaintiff asked for “such other and further relief in the premises as to the court may seem proper.” Whether regarded as an action in tort or as an action in contract, the federal court clearly had jurisdiction of the subject-matter. A general judgment against the city, though erroneous, would have been within its jurisdictional power. And while a judgment or decree which is beyond the power of the court to render in any case, or so much thereof as is entirely without the scope, not merely of the specific prayer, but of the substance, of the pleadings, is void, even on collateral attack (King v. Doerr, 145 App. Div. 177, 129 N. Y. Supp. 986, affirmed Same v. Beers, 203 N. Y. 559, 96 N. E. 1117), the instant judgment, with its limitation based upon the facts of the case pleaded, though departing from the specific relief prayed for, was clearly within the jurisdictional power of the court, and is therefore binding upon the parties in this case (Insley v. United States, 150 U. S. 512, 14 Sup. Ct. 158, 37 L. Ed. 1163). In the very case in which such a limited judgment was first upheld (County of Cass v. Johnston, 95 U. S. 360, 24 L. Ed. 416), the plaintiff seems to have demanded a general judgment. [4] Third. The New York statute, pursuant to which appellee’s dissolution proceedings were instituted, provides that after dissolution [862] “said corporation shall nevertheless continue in existence for the purpose of collecting'its assets and may sue and be sued until its business and affairs are fully adjusted and wound up.” In other words, despite the proceedings, its corporate existence is not fully extinguished; its ■capacity to sue and be sued is preserved. It remains a citizen of the state of its creation; it may sue therein (City of New York v. Warren-Scharf Asphalt Paving Co., 149 App. Div. 633, 134 N. Y. Supp. 439), and no reason is apparent why it may not also sue, as a foreign corporation, in the federal courts. Sinnott v. Hanan, 156 App. Div. 323, 141 N. Y. Supp. 505, involving the construction of the New Jersey statute, is not in.point. [5] Fourth. The present proceeding in equity was purely ancillary, for the purpose of effectuating the judgment at law through foreclosure of the liens on appellants’ property unless payments were made. The question of jurisdictional amount is therefore not involved. H. C. Cook Co. v. Beecher, 217 U. S. 497, 30 Sup. Ct. 601, 54 L. Ed. 855, is in no way in conflict with Preston v. Calloway, 183 Fed. 19, 105 C. C. A. 311 (C. C. A., 6th Circuit). In the former case a suit against directors of a corporation to enforce their liability created by state statute for certain debts of the corporation was held not to be ancillary to a judgment against the corporation. In no proper' sense was this a suit to enforce the judgment merely because' a judgment against the corporation was a condition precedent to the creation of the directors’ independent statutory obligation. In the present case, however, as in the Calloway Case, “the object •of the suit was to enforce payment of the tax in order to obtain satisfaction to that extent of the judgment theretofore rendered on the law side,” not to enforce an entirely independent liability. The assessments and liens thereby created constituted the sola fund to which the city or contractor could resort for the payment of the judgment which, while it was in form the debt of the city, in substance was .the obligation of these appellants as owners of the assessed property. [6] Fifth. The ancillary proceeding was based upon the judgment itself and the obligation thereby declared and created. The recital in the bill of complaint of the facts leading up to the judgment does not make it an 'original suit in equity based upon the alleged pre-existing obligation, as in Brownsville v. Loague, 129 U. S. 493, 9 Sup. Ct. 327, 32 L. Ed. 780. And while a court of equity, when called upon to aid in executing its own former consent decree, may decline to treat it as res adjudicata, and may therefore refuse to deem it' binding in respect to the relief to be granted on the new bill (Lawrence Mfg. Co. v. Janesville Cotton Mills, 138 U. S. 553, 11 Sup. Ct. 402, 34 L. Ed. 1005), it has no power, either in an original or ancillary proceeding, to go behiñd a judgment at law, jurisdictionally valid and free from fraud, in search of errors, however gross. Tilton v. Cofield, 93 U. S. 163, 167, 23 L. Ed. 858; New Orleans v. Fisher, 180 U. S. 185, 21 Sup. Ct. 347, 45 L. Ed. 485. [7] Sixth. While defenses against the specific assessments on the several properties of the appellants, based on defects in the proceedings subsequent to the entry of the judgment in the Circuit Court, are [863] not concluded by the judgment itself, nevertheless only jurisdictional defects can be urged in this suit. Appellants defaulted in the opportunity to attack mere errors by their failure to appear at the hearing at which the preliminary assessment roll was confirmed. Moreover, a single assessment against one lot owned by two persons in common does not violate the rule that each tract or lot must be assessed separately. And, by the express provisions of the statute a mistake in the name of the owner of the land does not vitiate the assessment. In this case, each owner had due notice of all proceedings. Decree affirmed.