Plutus Min. Co. v. Orme, County Com'rs. , 76 Utah 286 ( 1930 )

An action was commenced in the district court in April, 1925, by the Plutus Mining Company and others to sever certain described territory from the corporate limits of Mammoth City in Juab county. Included within such territory sought to be severed were located mines, machinery, improvements, and personal property of the mining company. In August, 1925, on a hearing of the cause and upon findings made and a judgment rendered and entered, the district court, among other areas, severed the territory in which were located the mines and properties of the mining company. From that judgment the city prosecuted an appeal to this court, which, on May 8, 1928, reversed the judgment of the court below, directed new findings to be made, and a judgment entered denying a severance of the territory in which the mines and properties of the mining company were located. In re ChiefConsol. Mining Co. et al. (Utah) 266 P. 1044. Such new findings and judgment in accordance with the opinion and direction of this court were made and entered June 1, 1928.

The annual net proceeds of the mines of the company for the years 1925 to 1928, the period in which the case was pending on appeal, were from $721,366 to $1,176,164. In this state mines are assessed on their annual net proceeds, and machinery, improvements, and personal property on their actual value. All of such properties of the company for such years, from 1925 to 1928, were regularly and duly assessed; but, because of the judgment rendered by the district court severing the territory in which such properties were located, and because of writs of prohibition thereafter granted by the district court, none of the values of such properties for any of such years was apportioned to Mammoth City, and hence no city taxes collected with respect to such properties and none paid by the mining company.

The real controversy on these appeals is as to whether the properties of the mining company, notwithstanding its unsuccessful attempt to sever the territory from the corporate limits of the city and in which its properties were located, were or were not subject to city taxes during the period of such unsuccessful litigation by the mining company. It is the contention of the company, and upheld by the prevailing opinion, that from the erroneous rendition and entry of the judgment of segregation by the district court and until such erroneous judgment was reversed and new findings and a judgment entered denying a severance of such territory, the properties of the mining company situate therein were without the territorial limits of the city and free from and not subject to city taxes. I cannot concur in that.

After the appeal in the segregation cause was perfected, and while it was pending and undetermined in this court, the Plutus Mining Company and others, on August 26, 1926, in a separate and independent action against the county commissioners of Juab county, petitioned the district court for a writ of prohibition to prohibit the commissioners from apportioning to Mammoth City values of the properties assessed against the mining company within the segregated territory. In the petition for the writ, the proceedings had, and the judgment rendered by the district court in the segregation cause severing the territory from the corporate limits of the city, that an appeal had been taken from such judgment by the city to the Supreme Court, and that the appeal was pending and undetermined, were all specifically alleged. It was further alleged that on August 14, 1926 (after the appeal was taken and perfected), the county commissioners met as a board of equalization and made and entered an order apportioning the values assessed by the state board of equalization and assessment on the properties of the mining company situated in the segregated territory, that such board had directed the commissioners to apportion the values of such assessed properties to Mammoth City, and that unless restrained, the county commissioners would do so. An alternative writ to desist and an order to show cause were issued on an ex parte application. The county commissioners appeared in the action and, on stated grounds of want of jurisdiction of the district court to issue the writ and on other grounds, moved the court to discharge the writ and to dismiss the action. The motion was denied November 6, 1926, and the writ made permanent. After the judgment of the court below in the segregation cause on the appeal was reversed on May 8, 1928, and after new findings on June 1, 1928, had been made and another judgment entered in accordance with the directions and opinion of the Supreme Court denying a severance of the territory in which the properties of the mining comany were located, the commissioners on June 16, 1928, by written motion filed in the cause in which the writ of prohibition was granted, again moved the court to revoke and annul the writ theretofore granted. The motion was denied November 17, 1928.

After the judgment of the court below in the segregation cause was reversed and after remittitur, new findings made, and a judgment entered on June 1, 1928, in accordance with the directions of this court denying a severance of the territory in which the properties of the mining company were located, the Plutus Mining Company, on June 15, 1928, by a separate action against the county commissioners, again petitioned the district court for another writ of prohibition to prohibit the county commissioners from making an apportionment of values for the years from 1925 to 1928, the time in which the appeal in the segregation cause was pending, of any of its assessed properties situated in the territory sought to be, but which was not severed, and from collecting any city taxes on such properties for such period. In that petition all of the proceedings had in the segregation cause were again alleged, that an appeal had been taken to the Supreme Court from the judgment of the court below, a reversal of the judgment had, and that new findings had been made and filed and another judgment entered in accordance with the opinion and directions of the Supreme Court denying a severance of the territory in question. It, however, in that petition, was further alleged "that notwithstanding said appeal and said reversal, the decree (in the court below) in said cause was, until vacated and reversed and during the time from August 15, 1925 (when the decree in the court below was rendered) and the 1st day of June, 1928 (when the new findings and judgment thereon were entered in accordance with the opinion and direction of the supreme court), in full force and effect and during all of such time the lands described in said decree of August 15, 1925, including the lands of your petitioner, lay outside the limits of Mammoth City"; and that unless restrained, the county commissioners would, as directed by the state board of equalization, apportion the assessed value of the properties of the mining company situate in the territory in question and proceed to collect the unpaid city taxes thereon. On an ex parte application an alternative writ to desist and an order to show cause were again granted. The commissioners again appeared in that action and demurred to the petition upon grounds that the court was without jurisdiction to issue the writ and that the petition did not state facts sufficient to entitle the petitioner to the demanded relief. The matter was taken under advisement until November 17, 1928, when the demurrer was overruled and the writ made permanent.

Two separate appeals are prosecuted by the commissioners, one in each case in which the writ was granted and made permanent. It is apparent that the real controversy involves the question of whether the mining company, during the period of litigation from 1925 to 1928 in which it sought but failed to sever the territory from the corporate limits of the city, is, because of such litigation, relieved from paying city taxes which it has not paid on its assessed properties in such territory so sought to be severed by it but which by the final adjudication of this court was not permitted to be severed. It is the contention of the appellants herein, the commissioners, that the granting of the writ in each case was in excess of subject-matter jurisdiction; and further, though it be held the district court had jurisdiction, still the granting of the writs constituted reversible error and the rulings with respect thereto reviewable on direct attacks by the appeals herein taken. In the prevailing opinion the thought seems to be entertained, and a ruling in effect made, that since by the Constitution district courts are made courts of general jurisdiction and given power to issue writs of prohibition, the court below had jurisdiction of subject-matter, and hence the rulings granting the writs involved questions of mere error. I do not concur in that. Because district courts are courts of general jurisdiction and given power to grant writs of prohibition, it does not follow that the court below had subject-matter jurisdiction of the cause. A court, of course, must have cognizance of the class of cases to which the one adjudicated belongs, which, usually, is conferred either by constitutional or statutory provisions; but it also must have jurisdiction of the subject-matter of a concrete case which is conferred and acquired by pleadings. That is, jurisdiction of subject-matter of a controversy of a cause and the authority of the court to hear and determine it, in the first instance, is dependent upon allegations of the complaint or petition or other initiatory pleading. In other words, it is the pleadings which constitute the juridical means of investing a court with jurisdiction of subject-matter of a cause to hear and determine it. We have frequently held that. Stockyards Natl.Bank, etc., v. Bragg, 67 Utah 60, 245 P. 966; Oldroyd v.McCrea, 65 Utah 142, 235 P. 580, 40 A.L.R. 230; In re Evans, 42 Utah 282, 130 P. 217; State v. Topham,41 Utah 39, 123 P. 888. Such, too, is the general holding of other courts. Dippold v. Cathlamet Timber Co., 98 Or. 183,193 P. 909; Hope v. Blair, 105 Mo. 85, 16 S.W. 595, 24 Am. St. Rep. 366; State ex rel. v. Muench, 217 Mo. 124,117 S.W. 25, 129 Am. St. Rep. 536; Cooper v. Reynolds, 10 Wall. 316,19 L. Ed. 931; Munday v. Vail, 34 N.J.L. 418.

For such reason have I referred to the substance of the petitions in the court below and upon which the writs were granted. As is seen, the gist of the petition for the first writ is that since the district court by its decree in the segregation cause severed the territory in which the properties of the mining company are located from the corporate limits of the city, and though an appeal was taken by the city to the Supreme Court to reverse the judgment in such particular, nevertheless, until the judgment was reversed it was in full force and effect, and as was alleged in the petition for the writ, the judgment being "self-executing," the company was entitled to have it enforced and carried into execution and the properties of the mining company regarded as being without the corporate limits of the city pending the appeal, regardless of whether the judgment of the court below was reversed or affirmed.

And as is seen, the gist of the petition for the second writ, which was issued after the original judgment in the segregation cause was reversed and findings made and another judgment entered in accordance with the opinion and direction of the Supreme Court denying a severance as to the territory in question, is that notwithstanding the appeal and the decision of this court reversing the judgment of the court below and directing new findings and the entry of a different judgment, the original decree of the district court from August 15, 1925, when it was rendered and entered, and until June 1, 1928, when the judgment as directed by this court was entered, was in full force and effect and the lands and properties of the company outside the limits of the city, and hence were not subject to city taxes for any part of such period.

The petitions, not being founded on any admitted or issuable facts, but solely upon groundless and unwarranted conclusions of law respecting the legal effect of the decree of the district court in the segregation cause pending the appeal, I am of the opinion that no authority was conferred on the district court to grant either of the writs, and especially not the second writ.

However, inasmuch as the appeals before us are direct attacks on the proceedings and rulings of the district court granting the writs, the judgments of the court below nevertheless must be reversed, though it be deemed the district court had jurisdiction, if the writs were erroneously granted. Hence, what I shall further say may be regarded as applying to both propositions. Since the appeals here, being direct attacks on the judgments of the court below granting the writs, if the asserted legal effect of the decree of the district court in the segregation cause pending the appeal was groundless and unwarranted, then fall the petitions, and then must the judgments founded thereon also fall. Thus, the crucial question is: What, pending the appeal, was the legal effect of the erroneous decree of the district court in the segregation cause severing the territory in question from the corporate limits of the city? The mining company asserts, and in the prevailing opinion it in effect is held, that the decree, nothwithstanding the appeal and its pendency, was "self-executing" and enforceable, until the decree was reversed, and that until then, the decree fixed and determined the rights of the parties to the same extent as though the decree had been affirmed. Such claims are made on the doctrine that a judgment rendered by a court of competent jurisdiction, having jurisdiction of subject-matter and of the parties, is binding on them until it is reversed or modified. I think the doctrine misconceived and misapplied to the matter in hand. It generally is applied to collateral attacks on judgments. These appeals are direct attacks. But that does not answer what the effect of a judgment is when an appeal is taken therefrom and a supersedeas given. In determining that, the character of the cause in which the appeal is taken, whether it is a suit in equity or an action at law, is an important factor. We many times have held that on an appeal in an equity case on questions of both law and fact the review in this court is in effect a trial de novo on the record. If the segregation cause was a suit in equity and not merely an action at law, then the appeal which was on questions of both law and fact involved in effect a trial de novo on the record, in which case, the appeal, when perfected and the whole case transmitted to this court, in legal contemplation, vacated or rendered inoperative the judgment of the court below. In such respect the effect of an appeal is different from a mere appeal in an action at law to review errors. In an equity case, the appeal when perfected opens the whole case and renews the litigation before the appellate tribunal. When the case reaches that tribunal upon the whole case transmitted to it, the judgment of the court below in legal effect is vacated, for the appeal operates as an immediate transfer of the case to the appellate court, puts an end to any further control of the inferior court, operates to annul its judgment which in legal contemplation ceases to exist, and leaves the case with all its incidents precisely as it stood before the rendition of the judgment in the court below. On such a review, the appellate tribunal in reviewing the record makes or directs findings and a judgment, regardless of what findings were made or what judgment was rendered in the court below. Such views are amply supported by the authorities. Snelling v. Parker,8 Ga. 121; Smith v. Holmes, 59 Tenn. (12 Heisk.) 466; Fort v.Fort, 118 Tenn. 106, 101 S.W. 433, 11 Ann.Cas. 964; Lewis,Adm'r, v. St. Louis I.M.R.R. Co., 59 Mo. 495, 21 Am.Rep. 385; Bank of North America v. Wheeler, 28 Conn. 433, 73 Am. Dec. 683; Klicka v. Klicka, 105 Ill. App. 369; Anderson v.Patty, 168 Ill. App. 151; Rogers v. Hatch, 8 Nev. 35; 2 R.C.L. 118; 3 C.J. 1261.

If on such a review the appellate court affirms or modifies the judgment of the court below, the affirmance or modification relates back to the rendition and entry of the judgment in the court below. If it is reversed, the judgment of the court below is rendered ineffectual for any and all purposes, and the judgment rendered or directed by the appellate tribunal becomes the final judgment in the cause and the final determination of the rights of the parties in and to the subject-matter of the litigation, and relates back to the time when the judgment of the court below was rendered and entered.

In some jurisdictions a proceeding for a severance of territory from a city or town is regarded as an action at law.Lorimor v. Incorporated Town of Lorimor, 196 Iowa 774,195 N.W. 199; Heebner v. Orange City, 44 Fla. 159, 32 So. 879. But in the Iowa case the statute expressly provided that the hearing "may be had by the court, or either party may demand a jury." In the Florida case the opinion does not disclose whether on a demand for a jury the issues may or may not be tried by a jury. An examination, however, of the statute referred to in the opinion shows that it provides that a petition for severance may be heard and determined by the court in term time or vacation and any question of fact "may be" determined by the court without a jury. Our statute (Comp. Laws Utah 1917, § 771) provides that the "issue shall be joined and the cause tried as provided for the trial of civil causes, as nearly as may be." A suit in equity is a "civil case" as much as is an action at law. The statute, section 772, further provides that "if the court finds * * * that the allegations of the petition are true, and that justice and equity require that such territory or any part thereof should be disconnected from such city, it shall appoint three disinterested persons as commissioners to adjust the terms upon which such part shall be so severed," etc., who shall make a report to the court who may approve it or for good cause shown modify or reject it.

It is not always easy to determine whether a given cause is one in equity or at law. The principal determining factors are the pleadings, the primary purpose of the action, the relief sought, whether a disposition of the issues involves the application of mere legal or equitable priciples, and as to whether the issues may or may not be tried and determined by a jury. Because a proceeding is statutory does not necessarily determine whether the case is in equity or law. Duncan v.Greenwalt (C.C.), 10 F. 800. Whatever divergent views may be entertained as to whether the case here for severance was one in equity or at law, from the manner in which it was considered and reviewed by this court on the appeal, in effect a trial de novo on the record, directing the lower court, not to further try or hear the case, but to make findings and enter judgment in accordance with the views expressed in the opinion of this court (In re Chief Consolidated Min. Co. et al., 266 P. 1044), it seems quite clear that the case was by this court considered and heard as one in equity. It was only on such theory that this court was authorized to give the directions as was done with respect to the making of findings and the entry of a judgment in accordance with its opinion. In other words, this court on merits made a complete and final determination of all the claims and rights of the parties to the cause. Had the case been regarded as one at law, this court determining that the findings were not supported by sufficient competent evidence, or that other errors of law prejudicial to the rights of the appellant had been committed, the only ruling that could properly have been made would have been a reversal of the judgment and a remanding of the case for a new trial or for further hearing. In such case this court would not have been authorized to dismiss the action, or to make or direct findings or a judgment, unless the action was not in any event maintainable and the plaintiffs in no event entitled to any relief.

But how stands the case if the segregation cause be regarded merely as an action at law? And what was the legal effect of the appeal in such case? On an appeal requiring merely a review of errors and an affirmance of a judgment or a reversal and a remanding for further trial or hearing, the judgment of the lower court is not vacated, but its operation and force and effect may be and is suspended or stayed pending the appeal by a supersedeas. By Comp. Laws Utah 1917, § 7225, it is provided that when the state or a city or county, or any of its officers, is a party plaintiff or defendant, no undertaking, supersedeas, or security can be required, but that each has the same rights, remedies, and benefits as though an undertaking or supersedeas had in fact been given. Mammoth City thus on its appeal had all the rights, remedies, and benefits of a supersedeas as prescribed by the statute (section 7005), which, among other things, provides that whenever an appeal is perfected "it stays all further proceedings in the court below, upon the judgment or order appealed from, or upon the matter embraced therein"; and it is the general rule that when an appeal is perfected the case becomes one for cognizance of the appellate court and for that court alone, the authority of the lower court terminated, and that it cannot proceed as to any matter involved in the subject-matter of the appeal, until the appeal is heard and determined, and that it cannot take any action which in effect will be an execution or an enforcement of the judgment, or which will affect the subject-matter of the appeal, or which is in pursuance or affirmance of the judgment or embraced in the appeal. 3 C.J. 1255, 1263, 1319; 2 Cal. Jur. 422. In the case ofState ex rel. Kay v. Draney, 57 Utah 14, 176 P. 767, this court had under consideration the effect of an appeal and of a supersedeas. Therein it approvingly quoted this language from the Supreme Court of California in the case of Mark v. SuperiorCourt, 129 Cal. 1, 61 P. 436, 438:

"The effect of the appeal from the judgment was to leave the parties in the same situation, with reference to the rights involved in the action, as they were prior to the rendition ofthe judgment." (Italics added.)

To the same effect are Mulvey v. Superior Court, 22 Cal. App. 514,135 P. 53; Watkins v. Dunbar, 318 Ill. 174,149 N.E. 14, 15; Midland Terminal Ry. Co. v. Warinner (C.C.A.) 294 F. 185; Phebus v. Search (C.C.A.) 264 F. 407; IndianaElec. Sup. Co. v. Lux, 77 Ind. App. 286, 130 N.E. 153.

In Watkins v. Dunbar, supra, the court said:

"When the appeal from the judgment in the replevin case was perfected in the Appellate Court, the circuit court of Christian county lost jurisdiction of the case and all proceedings in that court were stayed. * * * There being no case pending in the circuit court, that court had no authority to enter any order in the cause until it was properly reinstated."

In view of all this, I think that when the district court granted the first writ of prohibition after the appeal had been taken and perfected in the segregation cause and the case transferred to the Supreme Court, the district court exceeded its authority and jurisdiction. That the granting of the writ was something done in pursuance and in affirmance of the judgment appealed from, if not in execution and enforcement of it, and constituted action taken as to the very matter embraced and included in the appeal, cannot well be doubted. Strange it is that it should be thought that the court by a separate and independent action had authority to do something which it could not do in the action itself from which the appeal was taken. And since the court could not, under the statute, exact any bond or security from the city, it could not indirectly accomplish the same purpose or effect by issuing a writ of prohibition, nor, much less, could it treat the judgment as in force and as operative, and permit it to be asserted in or made the basis of a separate and independent action against those, the county commissioners, not parties to the cause in which the judgment of segregation was rendered.

But further as to this. We have another statute (Comp. Laws Utah 1917, § 7220) which provides that "an action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied." With respect to such a statutory provision it, in 2 Cal. Jur. 412, is said:

"The code expressly declares that an action is deemed pending while an appeal from the judgment is pending. Although a judgment may be final with reference to the trial court which rendered it, and, as such, be the subject of an appeal, yet it is not a final determination of the rights of the parties pending its review upon appeal. A judgment, in order to be admissible in evidence for the purpose of proving facts therein recited, must be a final judgment in a cause. Hence, it has been repeatedly held that the operation of a final judgment is suspended by an appeal therefrom, or that pending such appeal the judgment is not admissible in another case as evidence, even between the same parties."

And on page 137 of the same volume the author further says that a judgment in one sense may be final with reference to the property or rights affected so that no further proceedings in a cause by appeal or otherwise may be taken, but in another sense a judgment may be final as to the court which renders it without being final as to the subject-matter, and, as such, be the subject of an appeal, without being final with reference to the property or rights affected.

Many California cases are cited in support of the texts. Our statute is the same as that of California. I find it necessary to quote from only one of the cited cases, Gillmore v. AmericanC.I. Co., 65 Cal. 63, 2 P. 882, 884. It is there said:

"While proceedings are pending for the review of a judgment, either on appeal or motion for a new trial, the litigation on the merits of the case between the parties is not ended; and until litigation on the merits is ended there is no finality to the judgment in the sense of a final determination of the rights of the parties, although it may have become final for the purpose of an appeal from it."

Because the operation of a judgment is suspended and unenforceable by an appeal therefrom, this court, in line with many other courts, held that pending an appeal and until it is determined the judgment is not admissible in another case.Vance v. Heath, 42 Utah 148, 129 P. 365. For stronger reasons does it follow that a judgment pending an appeal cannot be made the basis upon which to found another action, as was done by the court below when in a separate action the first writ of prohibition was granted. The appeal, as stated by the court in the case of Barnhart v. Edwards, 128 Cal. 572, 61 P. 176,178, "deprived the judgment of all effect as the basis of any action of the court dependent thereon." That the action of the court granting the writs was based on the decree rendered by the district court in the segregation cause and as operative and enforceable pending the appeal and notwithstanding its reversal cannot be doubted.

Since, therefore, there was no final determination of the rights of the parties in the segregation cause until the decision of this court on the appeal and the entry of findings and another judgment in accordance therewith, it necessarily follows that when such determination was made, the original judgment of the district court was for all purposes rendered of no more binding or legal effect than though it never had been rendered or entered. Having been vacated and deprived of all legal effect, I see no support for the claim that the judgment thereafter could become the basis for another action, or for any kind of proceeding founded upon it as was done when the second writ was granted. The court in the causes for the writs was not required to take, though it be assumed it could have taken, judicial notice of the reversal of the judgment in the segregation cause and the entry of another judgment in lieu thereof denying severance, for all such matters were fully averred in the petition for the writ.

When it thus is considered that because of the appeal in the segregation cause the rights of the parties to the subject-matter of the litigation were not finally determined until the cause on the appeal was disposed of, and that when the judgment of the court below granting the serverance was reversed and another judgment in lieu thereof directed and entered denying a severance, which, as the authorities say, related back to the time when the judgment of the court below was rendered and entered, it seems quite apparent to me that the territory in question was not severed, but remained where it was when the litigation started, within the corporate limits of the city, and that the basis of the assumed contingencies referred to in the prevailing opinion disappears. In other words, not anything with respect to a severance was accomplished by the litigation, except an adjudication that the mining company was not entitled to a severance of the territory in which its properties were located. Its properties thus were within the corporate limits of the city when the litigation started and still were in when the litigation ended and the rights of the parties with respect thereto finally determined.

To support the claim that its properties during the years in question were out, and the taxing authorities prevented from collecting city taxes thereon, which admittedly remain unpaid, it is apparent that the company is required to rely, as it does, on a decree, which because of the appeal was not a final determination of the rights of the parties to the cause, and which on the appeal was held for naught and vacated. It is difficult to perceive a more groundless basis to support any kind of a claim or demand.

I therefore am of the opinion that the district court was without jurisdiction to grant either writ. I further am of the opinion that though it be considered the district court had jurisdiction, the granting of the writs nevertheless was erroneous and unjustifiable, and in either view the judgment granting the writs should be reversed and vacated, and the taxing authorities permitted to collect the unpaid taxes on the properties of the mining company which on the final adjudication of the segregation cause were adjudged to be at all times in question within and not without the territorial limits of the city and hence subject to taxation for city purposes.