COUNTY OF LE SUEUR v. THE GLOBE INDEMNITY COMPANY

Minnesota Supreme Court1921-10-14No. No. 22,483

150 Minn. 120

Summary · law.co

Holding. The court affirmed the judgment for the county, holding that the procedural defects were not fatal to the ditch establishment proceeding because the statutory bond requirement was satisfied, minor deviations in notice timing were immaterial, the county board's order constituted prima facie evidence of regularity that was not rebutted, and the surety was estopped from challenging the validity of the contract it had guaranteed.

Le Sueur County sought to establish a public ditch through a statutory procedure initiated by petition in December 1911. The county auditor conducted hearings and an engineer's report, ultimately resulting in a board order establishing the ditch. The county contracted with Moffatt & Herrick to construct part of the ditch, and the defendant company provided a surety bond to guarantee the contractors' performance. However, the contractors later abandoned the work, claiming the underlying proceeding was defective, and the county sued the surety to recover damages.

The defendant surety raised several procedural challenges to the ditch establishment proceeding. It argued that the petitioners' bond was not timely filed, that notice to affected landowners was defective because the auditor mailed notice to only one owner instead of all identifiable owners, and that notice was mailed before rather than after publication commenced. The trial court rejected these arguments and found in favor of the county.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether timely filing of the petitioners' bond before the initial hearing satisfied statutory requirements
Whether mailing notice before publication began, rather than after, constituted a material defect
Whether failure to mail notice to all affected landowners whose addresses were known vitiated the entire proceeding
Whether the surety could challenge the validity of the underlying contract after obligating itself to guarantee performance

Procedural posture

The county brought suit against the surety company to recover damages for the contractors' abandonment of the ditch construction work; the trial court ruled in the county's favor and the defendant appealed.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Hallam, J.

On December 11, 1911, Henry Kritzer and ten others filed with the auditor of Le -Sueur county a petition for a public ditch. On December 13 the auditor issued a notice of a hearing upon said petition on January 4, 1912. The petitioner’s bond was filed January 4, 1912. On May 13, 1912, the report of the engineer and of viewers having been filed, the auditor gave notice of a final hearing on June 7, 1912. On May 14 the auditor mathed a copy of the notice to one of the landowners affected. On May 16 the publication of the notice was commenced.

There were many landowners affected. Their names appeared in the viewer’s report, and the auditor knew their postoffice addresses, but he mathed the notice to but one.

On the hearing, an order establishing the ditch was made. The contract for constructing part of it was let to Moffatt & Herrick. To secure performance of their contract, these parties gave a bond with defendant as surety.

Moffatt & Herrick entered úpon the performance of their contract. In April, 1913, they claimed that the proceeding was void, because of failure of the county auditor to mail notice to the property owners affected, and requested that defects in the proceeding be corrected.

On May 7, 1913, the auditor issued notice of a new hearing to be held June 16. This notice was published, posted and mathed. On the hearing, the county board declined to take action and the contractors abandoned their work. This action is brought to recover the damages sustained. The court found for plaintiff. Defendant appealed.

Defendant contends that the proceeding is void because the petitioners’ bond was not filed before the notice of hearing on the petition was issued. The statute provides that “before the county board shall establish any ditch * * * one or more of such petitioners shall give bond.” Chapter 384, § 3, p. 540, Laws 1911. The bond was filed before the county board took any action in the proceeding. The statute was complied with.

The statute provides that the auditor shall mail to all persons or corporations whose lands are affected, a “printed copy” of the notice of the hearing upon the petition and reports, within one week after the beginning of the publication of the notice. Defendant contends that the mailing of a notice two days before the publication was a nullity. This slight deviation from the statute seems to us of immaterial consequence. Every purpose of the notice was subserved.

Defendant contends that the failure of the auditor to mail notices to numerous landowners affected and whose addresses were well known, vitiated the whole proceeding. We have no doubt that this notice is necessary to bind the interest of the landowner affected. Curran v. County of Sibley, 47 Minn. 313, 50 N. W. 237; Lager v. County of Sibley, 100 Minn, 85, 110 N. W. 355; perhaps it does not vitiate the proceeding as to others. State v. Johnson, 111 Minn. 255, 126 N. W. 1074; State v. Nelson, 136 Minn. 272, 159 N. W. 758, 161 N. W. 576.

But this notice might be waived by the landowners. If all appeared at the hearing, no one could complain of the want of notice and the proceeding would be to all intents and purposes regular. The statute makes the order of the county board establishing the ditch prima facie evidence of the regularity of all the proceedings prior to the making of such order. Laws 1905, p. 336, c. 230, § 48. See Geib v. County of Morrison, 119 Minn. 261, 138 N. W. 24, 9 A.L.R. 839. This prima facie evidence was not rebutted.

We axe of the opinion also that defendant, having obligated itself to secure performance of the contract of Moffatt & Herrick, is estopped from asserting that the contract was void. Moore v. Mayor, etc., of New York, 73 N. Y. 238, 29 Am. Rep. 134; Love v. Rockwell, 1 Wis. 382; Madison v. Am. Sanitary Engineering Co. 118 Wis. 480, 95 N. W. 1097.

Order affirmed.