
    Lynch v. Board of Education of City School District of City of Lakewood.
    
      Attorney General — Recovery of public money illegally expended by political subdivision — Advisory duty not limited ' to expenditures from state treasury — Section 286, General Code — Primary duty upon city solicitor or director of law —Adverse judgment not void for failure to co-operate with attorney general — Voluntary payment and satisfaction of judgment ends controversy — Defendant cannot prosecute appeal or error, or vacate judgment.
    
    1. Section 286, General Code, imposes an advisory duty upon the Attorney General in regard to the recovery ■ of public money illegally expended by any political subí division of the state, and where such expenditures are not made from the state treasury.
    2. Where such expenditures are made by a board of education of a city, the primary official duty and responsibility rests ' upon the city solicitor or director of law, and a failure •; to discharge that duty and a failure by him to. co-operate with the Attorney General, resulting in an adverse judg-¡ ment, does not. destroy the jurisdiction of the court, or render the judgment void.
    S. Where the court rendering judgment has jurisdiction of ■ the subject-matter of the action and of the parties, and fraud has not. intervened, and the judgment is voluntarily paid and satisfied, such payment puts an end to the controversy, and takes away from the defendant the right to appeal or prosecute error or even to move for vacation of judgment.
    (No. 19988
    Decided April 5, 1927.)
    Error to the Court of Appeals of ' Cuyahoga county.
    On June 20, 1922, the bureau of inspection and supervision of public offices made and filed a report of the examination of the city school district of the city of Lakewood. It was reported that the city school district had made certain illegal expenditures and a finding was made as a basis for recovery of the sum of $480 found to be due from the superintendent of schools, one Charles P. Lynch. The bureau’s finding grew out of the following facts, which were set forth in the agreed statement of facts in this cause, to wit:
    “On or about May 13, 1919, the board of education of Lakewood, Ohio, entered into a written contract with Charles P. Lynch for a term of five years, beginning the 1st day of September, 1919, and ending on the 31st day of August, 1924, at a stipulated salary of $5,000 per year; that, thereafter on June 13, 1921, the said board of education passed a resolution wherein it was recited that by reason of a substantial increase in the duties of the superintendent, an increase in pay for the unexpired term of the contract was made, and provided that said increase should be paid at the rate of $800 the first year following adoption of said resolution and $1,000 each for the remaining two years of the period of the contract.
    “In pursuance of this resolution the sum of $480 was paid to the said Charles P. Lynch, and there is now due him under the terms of the resolution the sum of-.
    “It is agreed that the duties of the superintendent were as a matter of fact substantially increased, at the time the resolution was passed by the board to increase the superintendent’s compensation; that the superintendent thereafter entered upon the performance of these increased duties, and has since performed same in a satisfactory manner.”
    
      A copy of the finding of the bureau was filed in the office of the city solicitor of the city of Lakewood, as required by Section 286, General Code, and on December 11, 1922, the city solicitor, whose title under the charter is that of law director, brought suit in the common pleas court of Cuyahoga county to recover said sum of $480, but not within the period of 90 days, as required by that section.
    The superintendent, Lynch, answered, admitting his contract with the board of education and his receipt of the extra compensation during the period of his term of service covered by said contract, pleaded the performance of additional duties, and claimed legality for the payment of increased compensation. He also filed a cross-petition in the same action to recover additional compensation not yet paid to him, in the sum of $2,320. The issues were completed by a reply filed by the board of education, which was a general denial of the allegations of the answer and cross-petition.
    The petition in that case was filed December 11, 1922, and the issues were completed by the reply filed on April 7, 1923. After the issues were completed, the exact date not being shown by the record, copies of the pleadings were sent by the law director to the Attorney General, and that official, in a letter dated April 23, 1923, made acknowledgment and the following request in the same letter:
    “Will you kindly keep this department advised of the progress of this case, and, in accordance with Section 286 of the General • Code, submit the journal entry before the same is filed at the conclusion of the trial.”
    
      It does not appear that the Attorney General was counsel of record in the case, or had any part in the trial thereof. A jury being expressly waived, the issues were submitted to the court upon the foregoing agreed statement of facts, and on May 16, 1924, the court made the following entry:
    “The parties by their attorneys came, waive a jury, and submit this cause to the court; on consideration whereof the court finds for the defendant on his cross-petition in the sum of $2,440. The court further finds for the defendant on plaintiff’s petition. ’ ’
    Thereafter, on June 2, 1924, the law director advised the Attorney General of the outcome of the suit without sending any proposed journal entry, and inquired whether the Attorney General desired to have the case taken to the Court of Appeals on error. Thereafter on June 6, 1924, the Attorney General replied, expressing surprise at the outcome of the case, and concluding his letter as follows:
    “For these reasons please carry this case on error to the Court of Appeals. If it will be of any help to you, this department is ready to cooperate with you in furtherance of this matter at your request.”
    Thereafter, without any further correspondence, and without any journal entry being submitted to the Attorney General, a judgment was entered on July 2, 1924, as follows:
    “Neither party desiring a new trial, it is therefore considered that said defendant recover of said plaintiff his said damages and also its costs of this suit. Judgment is rendered against the plaintiff for the costs herein.”
    Thereafter the judgment was paid by the board of education without the knowledge of the Attorney General. Many months later the Attorney General made further inquiry about the matter, and was then advised of all that had transpired in the meantime, and the Attorney General then sought by motion to have the judgment vacated, and to have a new trial, because of the failure to submit the journal entry before judgment was entered, the motion being based upon the provisions of Section 11631, General Code, authorizing vacation of judgment and allowance of new trial after term, as provided in paragraph 3 of that section as follows: “For mistake, neglect or omission of the clerk, or irregularity in obtaining a judgment or order.”
    The trial court, after full hearing, overruled the motion, and the judgment became final. Error was prosecuted to the Court of Appeals, and that court reversed the judgment and remanded to the court of common pleas for further proceedings. The cause has been admitted to this court upon allowance of motion to certify the record.
    
      Messrs. Bvnyon é Williams and Mr. R. E. Williams, for plaintiff in error.
    
      Mr. Edward C. Turner, attorney general, Mr. John A. Elden, Mr. Charles F. Ohl, and Mr. William L. David, for defendant in error.
   Marshall, C. J.

This cause involves an interpretation and application of Section 286 of the General Code. The statutes relating to the bureau of inspection and supervision of public offices are contained in Sections 274 to 291, General Code, both inclusive. Section 286 provides that the result of an.examination must be set forth in a report, and, if the report relates to expenditures from the state treasury, one copy shall be filed with the Attorney General. If it relates to expenditures from the treasury of a city, or city school district, a copy shall be filed with the city solicitor of such city. Other provisions are made concerning reports of expenditures for other subdivisions of the government. It is further provided:

“If the report sets forth that any public money has been illegally expended, # * * the officer receiving such certified copy * * * may, within ninety days after the receipt of such certified copy of such report, institute or cause to be instituted, and each of said officers is hereby authorized and required so to do, civil actions in the proper court in the name of the political subdivision or taxing district to which such public money is due or such public property belongs, for the recovery of the same and shall prosecute, or cause to be prosecuted the same to final determination. • # #

“Each prosecuting attorney, city solicitor, or legal counsel employed by a mayor of a village shall forthwith notify the Attorney General of the .filing of such actions and keep him fully advised of the progress thereof; and the Attorney General or his assistant may appear in any such action on behalf of the particular political subdivision or taxing district and may, either in conjunction with, or independent of such prosecuting attorney, city solicitor or legal counsel employed by a mayor, prosecute the same to final determination; and the attorney general may, when in his judgment it is proper or there is good reason for so doing, if requested so to do by the auditor of state, bring the action in all cases where the prosecuting attorney, city solicitor or mayor fails or neglects to do so within ninety days after á report of an examination has been so filed. * * *

“No judgment or final order shall be entered in any civil action commenced under the authority or direction of this section until such entry shall have been submitted to the Attorney General, and the Attorney General is hereby constituted an attorney of record in each such action.”

Inasmuch as the Attorney General was in large measure ignored in the proceedings in the court of common pleas, and there was a flagrant disregard by the law director of the city of Lakewood of his duties under Section 286, it becomes important at the outset to determine the status of the Attorney General under that section, and his duty in regard to actions relating to expenditures which were not of public money from the state treasury. It is urged by the Attorney General that there is a mandatory duty devolving upon his office to participate in all such actions relating to suits to recover, whether the expenditures are from the state treasury or from political subdivisions of the state, that no case can proceed to final judgment without an entry first being submitted to him, and that, unless such entry is so submitted, the judgment is void. It is contended, on the other hand, that the provisions of Section 286, relating to the appearance of the Attorney General, are directory only, and that the failure to submit the. entry to the Attorney General is at most an irregularity. If the last paragraph of Section 286 stood alone, it would make a strong case of mandatory duty, and would strongly tend to the conclusion that a judgment entered without submission of the entry to the Attorney General would be a nullity. It is, however, obvious that no duty devolved upon the Attorney General to bring this action, unless the law director refused to do so; neither was the law director bound to do more than to notify the Attorney General and keep him advised of its progress. The language relating to the appearance of the Attorney General in the action is permissive, and only becomes mandatory in the event of refusal or neglect on the part of the official of the political. subdivision to do so within 90 days after filing of the report. The conclusion is therefore irresistible that, while that section imposes a mandatory obligation upon the law director to notify the Attorney General of the filing- of the action, to keep him fully advised of its progress, and to submit the entry of final judgment to the Attorney General, his failure to obey that: ■ mandate and to discharge that statutory obligation affects only the liability and the responsibility of the officer who is thus derelict in his duty. It is clear that he was derelict in several respects. He did not bring the action within. 90 days of the filing of the report. When the- suit was filed, he did not advise the Attorney General forthwith of the filing, and did not advise Mm until the issues had been completed. Even when admonished by the Attorney General to keep him advised, and to submit to him the entry of final judgment, as required by Section 286, General Code, he failed to regard that admonition of the Attorney General and the duty imposed upon him by the statute, and, although the case was tried, and an entry made upon the journal of the court on the 16th day of May, 1924, he did not notify the Attorney General until June 2, 1924. In the meantime he did not even take the precaution to file a motion for a new trial. After being further instructed on June 6, 1924, to prosecute error, and having been tendered the aid and assistance of the Attorney General’s office, he permitted another entry of judgment, which is now regarded as the entry of final judgment, to be filed on July 2, 1924. He did not give the Attorney General any notification after June 2, 1924, during that current term of court. The name of the Attorney General was not at any time placed upon the pleadings as counsel. We shall not occupy any space in this opinion with a discussion of the letter of June 2d, as to whether or not it was equivalent to the submission of a copy of the journal entry. It clearly was not a compliance with the statute in that respect. The director of law was not only derelict in complying with the plain provisions of Section 286, General Code, but he failed to discharge the generally recognized duty of an attorney, even though having no .instructions from a superior officer. He not only failed to protect and preserve the rights of his client by proper exceptions, but it is apparent that he even affirmatively waived his client’s legal rights. The opinion of the Court of Appeals entertained the same views of his conduct that we have herein-before expressed and said that it was the duty of the courts to preserve the rights of litigants, and in reversing the judgment proceeded upon the theory that the provisions of Section 286 were mandatory throughout, and that the entry of judgment without prior submission of the journal entry to the Attorney General was null and void. That court treated the case as though no final judgment had ever been entered.

This court is of the opinion that the rights of the superintendent cannot be so easily disregarded. The court had jurisdiction of the cause and of the parties. The court had a right to assume from the record that the Attorney General was not participating in the action. The court further had a right to assume that the director of law of the city of Lakewood was doing his duty. There is no showing of collusion on the part of counsel for the superintendent. Upon this point the opinion of the Court of Appeals is pertinent and convincing :

“It is difficult to understand an intention on the part of the director of law to protect the interests of his client, not only by what he did and did not do, but by his failure to co-operate with and obey the instructions of the Attorney General, There is nothing in the record to indicate collusion or improper conduct on the part of the defendant or his counsel, or to do otherwise than fairly represent his interests. It is indicated, however, that that side of the case had the benefit of the co-operation of the other side in the matters suggested.”

We are of the opinion that all these things, so far as the superintendent is concerned, amounted to irregularities only, and did not render the judgment void and of no effect whatever.

Section 11631, General Code, provides that the common pleas court may vacate its judgment after term “for mistake, neglect or omission of the clerk, or irregularity in obtaining a judgment or order.” Inasmuch as the duty was not expressly imposed upon the clerk to transmit a copy of the entry to the Attorney General, we find no mistake, neglect, or omission on the part of the clerk. There is a disagreement between counsel in this case as to whether or not there was an irregularity.

We shall not undertake to decide that question in the instant case, because the judgment was voluntarily paid by the board of education months before the Attorney General knew of the same and before the Attorney General filed any proceedings to vacate the judgment. This error proceeding being prosecuted from the overruling of a motion to vacate the judgment, the entire record is not before us, and we therefore express no opinion as to whether or not, under the provisions of Section 20 of Article II of the Constitution, Lynch was such an official that his salary could not be increased during his existing term of employment. Neither is it necessary to decide whether there was an irregularity in obtaining the judgment. It is only necessary to determine whether the judgment was a void or a voidable judgment, and whether the payment of the judgment was voluntary.

It has frequently been decided that, when a judgment is paid after issuance of an execution, it is not a voluntary payment. There could, however, be no execution issued against a board of education, and the payment of the judgment in the instant case must necessarily have been voluntary. The Attorney General has cited cases upon the proposition that a judgment can be set aside even though the judgment has been paid. All of the cases cited, however, have been those where the judgment was paid after execution issued, and we have not been cited to a single case where a judgment has been set aside where the payment of the same has been voluntary. On the other hand, numerous cases have been cited in support of the proposition that, where a judgment has been voluntarily paid, and satisfied of record, the courts will not disturb the same unless the judgment is absolutely void on the ground of want of jurisdiction either of the subject-matter or of the parties. This court has never declared upon that proposition, but the following cases from other jurisdictions will be found to establish the rule: Durland Trust Co. v. Uttley, 103 Neb., 461, 172 N. W., 251; W. T. Rawleigh Medical Co. v. McKinney (Mo. App.), 180 S. W., 440; Pardue v. Absher, 174 N. C., 676, 94 S. E., 414; Penfold, Clay & Co. v. Singleton & Co., 36 Ga., 556.

The judgment of the Court of Appeals will therefore be reversed, and the judgment of the court of common pleas will be affirmed.

Judgment reversed.

Allen, Kinkade and Robinson, JJ., concur.  