First National Bank v. Regents of University

Action Against Board or University Regents — Jurisdiction—Power of Succeeding Board of Education to Defend — Election of Remedies. 1. The district eourt has jurisdiction to try an action against the Board of Regents of the State University to recover a balance for money advanced and material furnished in the construction of a building to be used by the university. Moscow Hardware Go. v. Regents, 19 Ida. 420, 113 Pac. 731, and First Nat. Bank v. Regents, 19 Ida. 440, 113 Pac. 735, approved and followed. 2. The act of March 6, 1913 (Sess. Laws 1913, p. 328), creating a State Board of Education, makes such board the successor to the old Board of Regents of the University of Idaho, and as such successor said State Board of Education has the power and authority to defend an action previously instituted against the old board for a pre-existing obligation. 3. Held, that the remedies sought by the plaintiff are not inconsistent remedies, and plaintiff could not be required to elect between them. 4. Held, that the lower court committed no error prejudicial to the rights of appellant.

APPEAL from the District Court of the Second Judicial District, in and for Latah County. Hon. Edgar C. Steele, Judge. Action against the Board of Regents of the University of Idaho to recover for money advanced and material furnished in the construction of a university building. Judgment against the board in the sum of $6,506.35, and the State Board of Education, as successor to the former Board of Regents,- appeals. An.action against the defendant arising out of its conduct in managing the affairs of the university is, in effect, an action against the state, and the district courts have no jurisdiction of either the subject matter of the action or the person of the defendant. {Hollister v.' State, 9 Ida. 13, 71 Pac. 541; Thomas v. State, 16 Ida. 82, 100 Pac. 761; Moody v. State’s Prison, 128 N. C. 12, 38 S. E. 131, 53 L. R. A. 855; Marion County v. Wilson, 105 Ky. 302, 49 S. W. 8, 799; State v. Regents of University, 55 Kan. 389, 40 Pac. 656, 29 L. R. A. 378; Oklahoma Agriculhtral etc. College v. Willis, 6 Okl. 593, 52 Pac. 921, 40 L. R. A. 677; Lane v. Minnesota State Agricultural Soc., 62 Minn. 175, 64 N. W. 382, 29 L. R. A. 708; 23 Am. & Eng. Ency. of Law, 83; Alabama Girls’ Industrial School v. Reynolds, 143 Ala. 579, 42 So. 114; Memphis etc. R. R. Co. v. Tennessee, 101 U. S. 337, 25 L. ed. 960; South & North Alabama R. R. Co. v. Alabama, 101 U. S. 832, 25 L. ed. 973; Gibbons v. United States, 8 Wall. (U. S.) 269, 19 L. ed. 453; Clodfelter v. State, 86 N. C. 51, 41 Am. Rep. 440; Chapman v. State, 104 Cal. 690, 43 Am. St. 158, 38 Pac. 457; Green v. State, 73 Cal. 29, 11 Pac. 602, 14 Pac. 610; Melvin v. State, 121 Cal. 22, 53 Pae. 416.) All the issues raised upon the material allegations in plaintiff’s complaint, by the first defense in the answer of the defendant, had been determined in this court, adversely to the plaintiff, and were res adjudicata. {First Nat. Bank v. Regents etc., 19 Ida. 440, 113 Pac. 735; Rev. Codes, sec. 595, subd. 3; Moscow Hardware Co. v. Regents etc., 19 Ida. 429, 113 Pac. 731.) Where a contract is breached by one of the parties thereto, the adverse party may either sue upon the contract and recover on it in so far as it is performed, as well as the value of his bargain in so far as it is unperformed, on showing a loss of profits, or he may because of the breach waive the contract and sue on quantum meruit, and recover the value of his services, but he cannot pursue both remedies. (Gabriel-son v. Hague Box & Lumber Co., 55 Wash. 342, 133 Am. St. 1032, 104 Pac. 635; Pomeroy’s Code Rem., 3d ed., see. 576; Maxwell on Code Pldgs., p. 108.) This court has held in an action involving the same claim, as an original proceeding in this court, that it was without jurisdiction and that the action should have been brought in the district court. (Moscow Hardware Co. v. Regents, 19 Ida. 420, 113 Pac. 731; First Nat. Bank v. Regents, 19 Ida. 440, 113 Pac. 735.) These decisions of this court, so far as its jurisdiction is concerned, should be final, and especially as to these parties, Who are the same as in the original proceedings heretofore referred to. It would be a new departure in judicial procedure for a court to hold that it was without jurisdiction, and then hold that the merits involved were res adjudicata, by reason of a finding, order or judgment, in such court. (State v. Keller, 8 Ida. 708, 70 Pac. 1051.) If this court in the former case had no jurisdiction of the subject matter, its decision and act would be void and of no force, and may be the subject of attack collaterally. (Risley v. Phenix Bank, 83 N. T. 320, 38 Am. Rep. 421; Thompson v. Whitman, 18 Wall. (U. S.) 457, 21 L. ed. 897; Sache v. Wallace, 101 Minn. 169, 118 Am. St. 612, 112 N. W. 387, 11 Ann. Cas. 348, 11 L. R. A., N. S., 803; Spoors v. Coen, 44 Ohio St. 497, 9 N. B. 132; W.aldron v. Harvey, 54 W. Ya. 608, 102 Am. St. 959, 46 S. E. 603; Rhode Island v. Massachusetts, 12 Pet. (U. S.) 657, 9 L. ed. 1233.) There are no substantial or harmful errors in the admission or rejection of evidence or the instructions of the court, and if there were any errors, they affected no substantial right of the appellant and should be disregarded. (Smith v. Field, 19 Ida. 565, Ann. Cas. 19120, 354, 114 Pac. 668.)