Town of Partridge v. Ring

JAGGARD, J.

The town board of the town of Partridge authorized certain counsel to bring an action for the plaintiff and respondent against the defendant and appellant. A money judgment was rendered for the plaintiff. A motion was made' by the defendant within a year afterwards praying that the judgment be set aside on the ground that the town board had not authority to institute or maintain the action and that the electors of the town only had such power. Plaintiff’s attorneys presented counter affidavits showing that subsequently to the entry of the judgment the electors ratified the employment of plaintiff’s attorneys and the maintenance of the action, including its culmination in the money judgment. The court denied defendant’s motion.- Defendant took this appeal.

*287 It may be conceded that the action of the town board in employing counsel to institute the action was void, and that this act, void in its inception, could not have been validated in its culmination. The electors, however, had the power to direct the institution of the controversy. Subdivision 3, § 625, R. R. 1905. What they could have originally directed they could subsequently ratify. In this case the ratification is not, in effect, the subsequent approval of the act of the town board, but the authorization of the employment of plaintiff’s counsel and of their conduct of the lawsuit. If there had been no original retainer, and counsel had merely volunteered, the electors could have given validity to their acts by subsequent consent. The authority of the town board was not less than no authority. • No question is raised as to the sufficiency of the form of the ratification.

Order affirmed.