text:
Great Western Insurance Company v. United States/Opinion of the Court

This is an appeal from a judgment of the court of claims dismissing a petition for want of jurisdiction. This was not done on a demurrer or plea, but on the following motion: 'The assistant attorney general, on behalf of the United States, moves the court to dismiss the petition in this cause for the reason that it does not disclose a cause of action within the jurisdiction of the court.' The motion on hearing was sustained, and it is this judgment of dismissal we are asked to review.

The petition sets forth that the claimant was an insurance company engaged in the business of insuring against losses by sea, and that it insured, in numerous cases, vessels, cargoes, and freight, owned by citizens of the United States, against war risks during the civil war between the United States and the Confederate states; that by reason of the losses and destruction of the vessels and cargoes so insured, inflicted by the Confederate cruisers Alabama and Florida, this claimant paid the sum of $309,635 to the owners of the vessels and cargoes, and that claimant not only became by law subrogated to rights of such owners against the parties who caused the loss, but took assignments of the claims from the losers to itself. The petition then alleges that the British government, by its laches and unfriendliness, in permitting these cruisers to be built, fitted out, and furnished with supplies within its dominion, became responsible for the losses inflicted on the owners of the vessels and cargoes captured and destroyed by them; that petitioner placed these claims in the hands of the secretary of state with the evidence to prove them against that government. The negotiation, treaty, and award known as the Alabama Claims Treaty and the Geneva A ward are then set out, with the allegation that the sum now claimed by petitioner entered into and constituted a part of the $15,500,000 which was awarded to the United States in satisfaction of all claims of this character.

It is alleged that the money so awarded was paid to the United States, by reason of which and certain subsequent dealings with this money, which was finally paid into the treasury of the United States by order of congress, an implied contract arose on the part of the defendants to pay to the claimant the amount of the losses thus set forth, with interest thereon, which is alleged to be over $500,000. The names of the vessels, and the amounts insured in each case on vessel, cargo, and freight, are shown by a schedule attached to the petition. From this it appears that 12 of these vessels were captured by the Alabama, and 8 by the Florida. The names of the owners of the vessels, cargoes, and freight are distinctly set forth, and the amounts paid to each.

The claimant, in its petition, places the right to recover on the ground that by virtue of the transactions between this government and Great Britain, and the receipt by the former of the money paid by the latter on account of these claims, the United States became a trustee for the claimant to the amount of its loss, and liable to pay the same; or, as expressed in another form, the money was received by the government for the use and benefit of the petitioner, and when it was paid into the treasury became indebted to petitioner for that amount. The same ground is assumed in the argument of counsel in this court, the claim being treated essentially as indebitatus assumpsit for money had and received to the use of plaintiff.

If, therefore, the claim is well 'founded on a contract, express or implied, with the United States,' within the meaning of section 1059 of the Revised Statutes, and is not forbidden by any other act of congress, the petition should not have been dismissed; but if it does not present such an implied contract, (for there is no pretense of an express contract,) or if, for any other reason, the case is one of which the court of claims is forbidden to entertain jurisdiction, then the judgment of dismissal was correct.

The case has been mainly argued here on the proposition that the transaction does raise an implied promise on the part of the government of the United States to pay appellant the amount of money paid by it on account of the losses inflicted by the Alabama and Florida, or such proportion of that loss, if it be any less than the whole, as was covered by the award. And the judgment of the court below is defended largely upon the ground that no such legal obligation or contract arises from the transaction. The opinion of the learned chief justice of the court of claims is an able presentation of this view. But the judgment of that court is also defended on the ground that whatever may be the moral or the legal obligation of the government to the appellant growing out of the treaty, the award, and the receipt of the money, it does not present a case cognizable in the court of claims, both because the acts of congress creating the court and conferring its jurisdiction were not intended to embrace this class of cases, and because they were in express terms excluded from it. If this latter proposition be sound, we deem it inappropriate to express any opinion on the other, because the fund in the treasury, paid under the Geneva Award, has been already largely distributed under the decisions of one special commission appointed for that purpose, whose powers have expired, and is now under administration by another commission created for the same purpose by another act of congress. And although it is said that neither of these commissions could, under the law of its creation, take cognizance of appellant's claim, it is matter of public notoriety that the subject of claims of this class is occupying the attention of congress, and bills on that subject are now pending before it. Under these circumstances we do not think it appropriate to express an opinion on the legal or moral obligation of the government in the matter, unless it is in the line of a plain duty.

The question of jurisdiction is the one raised by the motion, and is always to be decided before the court can properly inquire into the merits, and we are of opinion that, even if the circumstances recited in the petition can be held to raise an implied obligation on the part of the United States, the court of claims is forbidden to take jurisdiction in this class of cases. Section 1066 of the Revised Statutes enacts that 'the jurisdiction of said court shall not extend to any claim against the government not pending therein on December one, eighteen hundred and sixty-two, growing out of or dependent on any treaty stipulation entered into with foreign nations or with Indian tribes.' This language is comprehensive and explicit. If the cause of action grows out of a treaty stipulation, the court cannot entertain it. If it is dependent on any such stipulation, the same result follows. In any ordinary or usual sense of the words here used, appellant's claim, as set forth in the petition, grows out of the stipulations of the treaty of Washington. The allegation is that the United States took charge of the claim of petitioner against Great Britain for the injuries inflicted by the Alabama and the Florida; that, by a treaty on that subject, Great Britain stipulated that she would pay this claim to the United States, as petitioner alleges, for the use of said petitioner. In accordance with said stipulation, Great Britain did pay it to the United States, and the purpose of payment under the treaty inhering in the receipt of the money constitutes the foundation of appellant's claim. The intervention of the board of arbitration and its award as a means of ascertaining the liability of Great Britain does not change the fact that the final recognition and payment of the claim grows out of the stipulation of the treaty.

In a still clearer sense, it is obvious that this recognition of the claim by the award, and its payment to the United States, were dependent on the treaty stipulation. Without the treaty the award would have bound nobody, and would have been at most a friendly recommendation. By virtue of the treaty, it became a most solemn and important international obligation whereby Great Britain became bound, as much as a nation can be bound, to pay the amount of the award, and, at the same time, became freed and discharged from any further liability on account of any claims of that class.

The effort of counsel to ignore the treaty, the award, and the receipt of the money by the United States as the foundation of appellant's claim, and rest the right to recover solely upon the act of March 31, 1877, by which the fund was changed from an investment in government bonds and paid into the government treasury, is too fanciful for serious consideration. If the government had not become liable, by reason of the original receipt of the money from Great Britain, under the treaty by which that country was discharged and released from the claim of plaintiff, it is difficult to comprehend how it became liable by a mere change in the manner of keeping the account. Whether the United States was liable on the bonds held in its own treasury vaults, or on account of the actual money represented by those bonds in the same vaults, cannot be material in estimating the nature and extent of that obligation. Nor can we assent to the proposition that the section cited was designed to prevent foreign governments or Indian tribes from suing the United States to enforce rights founded on treaties. No such suit has ever been brought before or after the enactment of this provision. It is not believed that without it any one ever supposed that the court of claims had jurisdiction of suits by Indian tribes or foreign nations against the United States. It could not have been passed, therefore, to prevent such a suit.

That the restriction was intended to apply to cases of the character of the one now before us was substantially decided in Atocha's Case, 17 Wall. 439. In that case, under the treaty of Guadalupe Hidalgo with Mexico, of February 2, 1848, our government undertook to satisfy the claims of her citizens against Mexico to the amount of $3,250,000. In execution of this stipulation congress passed an act creating a board of commissioners, before whom such citizens should appear and establish their claims. When the two years which terminated the existence of the commission had expired, a considerable balance of this sum remained in the hands of the government, against which no claims had been established. In this condition a special act of congress authorized Atocha to present his claim to the court of claims, and if established to the satisfaction of that court, it was to be paid out of this fund. That court found in his favor, and the United States asking an appeal it was refused. On an application to this court for a writ of mandamus to compel the court of claims to allow the appeal, it was urged by counsel for the government that the case being one cognizable under the general jurisdiction of that court on an implied contract, there was a right to appeal, though by the special statute referring the case to that court no such right was given. The court, in reply to this, said that since the act of March 3, 1863, in which the provision, embodied as section 1066 of the Revised Statutes, was first passed, the court of claims had no jurisdiction over this class of cases by virtue of the acts conferring its general powers. 'These acts have since then [said the court] applied only to claims made directly against the United States, and for payment of which they were primarily liable, if liable at all, and not to claims against other governments, the payment of which the United States had assumed or might assume by treaty. The act of June 25, 1868, while allowing appeals in behalf of the United States from all final judgments of the court of claims, did not change the character of the claims of which that court could previously take cognizance. Claims under treaty stipulations are not brought within it, and when jurisdiction over such claims is conferred by special act, the authority of that court to hear and determine them is limited and controlled by the provisions of that act.' That was a case in which, by the express terms of the treaty, the United States had assumed the debt of Mexico to Atocha and others of his class. The present is a case in which such assumption is implied from the circumstances of the treaty and the receipt of the money. In the former case the United States agreed, for a valuable consideration in land or territory, to pay for Mexico $3,250,000 to her creditors residing in the United States. In the latter, the government received $15,500,000 from England, under what is alleged to be an implied promise to pay a class of American claims against her. We can see no difference in principle in the two cases, as they have relation to the fact that both claims grow out of, and were dependent on, treaty stipulations.

This limitation of the jurisdiction of the court of claims is in accord with the uniform course of the government in dealing with claims of our citizens against foreign governments. In such cases, where those governments have acknowledged a liability, but the amount of the number of the claims is in controversy, mixed commissions, composed of arbitrators appointed by each party, and an umpire, have usually been created by a treaty, which made the award of the commission obligatory. In cases like that of Guadalupe Hidalgo and the treaty of Washington, under which the present claim arises, where the foreign nation pays, or agrees to pay, to this government a fixed sum in discharge of the class of claims which is the subject of treaty, congress has provided a commission at home to pass upon the claims asserted under the treaty. In no case that we are aware of has congress conferred on any judicial tribunal the power to adjudicate such claims as a class, and in the Case of Atocha, where a reference of a single claim was made to the court of claims, its action was rather in the nature of a commission to ascertain the facts than a judicial tribunal, as in other cases, and hence no appeal was allowed. In the case of the Geneva Award, one such commission has been created by act of congress and its term of service has expired. Another is now in existence, under another act, for the same purpose, namely, the distribution of the sum paid under that award, and congress is still devoting its attention to other means for the proper distribution of the remainder of this fund.

For these reasons we are of opinion that the court of claims had no jurisdiction of the case presented by the petition of appellant, and its decree dismissing it is affirmed.


text: Talk:Great Western Insurance Company v. United States/Opinion of the Court

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text:
Foster Company v. State Johnston

[Syllabus intentionally omitted]

W. Hallett Phillips, for motion.

[Argument of Counsel from pages 202-203 intentionally omitted]

A. L. Williams, against motion.

WAITE, C. J.

title: Foster Company v. State Johnston


text: Talk:Foster Company v. State Johnston

title: Talk:Foster Company v. State Johnston


text:
Foster Company v. State Johnston/Opinion of the Court

The showing under this rule presents the following facts: The supreme court of Kansas rendered a judgment on the first of April, 1884, removing Foster, the plaintiff in error, from the office of county attorney of Saline county. A statute of the state makes it the duty of the judge of the district court of a county to fill the office of county attorney when a vacancy exists. A writ of error from this court for the reversal of the judgment of the supreme court was duly allowed in Washington on the fifth of April, and a supersedeas bond approved, and a citation signed. Notice of these facts was telegraphed on the same day, by the counsel of Foster in Washington, to his counsel in Kansas. On the 7th, the counsel in Kansas called on the judge of the district court of the county and exhibited to him the telegram, and notified him of what had been done in Washington. After this, and a little before 12 o'clock of the night of the 7th, the judge appointed Joseph Moore to the office in place of Foster. The bond of Moore, which had been executed on the 7th, and then approved by the clerk of the county, was accepted by the county commissioners on the eighth of April, and Moore thereupon assumed to discharge the duties of his office. Before this appointment was made, an authenticated copy of the record of the supreme court removing Foster from the office was presented to the judge. On the same day, the 8th, the writ of error and supersedeas bond arrived from Washington and were duly lodged in the office of the clerk of the supreme court of the state. At the next term of the district court, which began on the twelfth of May, Moore appeared and acted as county attorney, the judge ruling that he, and not Foster, was properly in office. On the twenty-sixth of May a rule was granted by one of the justices of this court requiring Moore to appear here on the second day of the present term, and show cause why he should not be attached for contempt in violating the supersedeas. There is no dispute about the facts, and the simple question is whether they make out a case of contempt on the part of Moore. We have no hesitation in saying they do not. It was decided in Board Com'rs v. Gorman, 19 Wall. 661, which was followed in Kitchen v. Randolph, 93 U.S. 86, that a writ of error operates as a supersedeas only from the time of the lodging of the writ in the office of the clerk where the record to be re-examined remains; and in Doyle v. Wisconsin, 94 U.S. 50, that the provision of section 1007 of the Revised Statutes, to the effect that in cases where a writ of error may be a supersedeas executions shall not issue until the expiration of 10 days, does not apply io judgments in the highest court of a state. We see no reason to modify these rulings. It follows that the supersedeas was not in force when Moore was appointed to and accepted the office.

The judgment operated of itself to remove Foster, and leave his office vacant. It needed no execution to carry it into effect. The statute gave the judge of the district court authority to fill the vacancy thus created. The judge was officially notified of the vacancy on the 7th, when the authenticated copy of the record of the supreme court was presented to him. The operation of that judgment was not stayed by the supersedeas until the 8th, that being the date of the lodging of the writ of error in the clerk's office. It follows that the office was, in fact, vacant when Moore accepted his appointment, gave his bond, and took the requisite oath. He was thus in office before the supersedeas became operative. What effect the supersedeas had when it was afterwards obtained, on the previous appointment, we need not now consider. This is not an appropriate form of proceeding to determine whether Foster or Moore is now logally in office.

The rule is discharged.


text: Talk:Foster Company v. State Johnston/Opinion of the Court


text:
Foster v. State of Kansas Johnston

W. Hallett Phillips, for plaintiff in error.

A. L. Williams, for defendant in error.

WAITE, C. J.

title: Foster v. State of Kansas Johnston


text: Talk:Foster v. State of Kansas Johnston

title: Talk:Foster v. State of Kansas Johnston


text:
Foster v. State of Kansas Johnston/Opinion of the Court

This record shows that the attorney general of the state of Kansas commenced proceedings in quo warranto in the supreme court of the state against John Foster, county attorney of Saline county, to remove him from office, because he had neglected and refused to prosecute persons who were guilty of selling intoxicating liquors in the county in violation of a statute of the state known as the prohibitory liquor law. [See 3 Pac. Rep. 534.] Among other defenses relied on by the defendant was one to the effect that the statute under which the prosecutions were to be instituted was in violation of the constitution of the United States, and therefore void. It was also claimed that the writ of quo warranto in Kansas was a criminal proceeding, and that under the constitution of the United States the defendant was entitled to a trial in accordance with the Criminal Code of Procedure. The court ruled against the defendant on all these claims and defenses, and charged the jury that the sections of the prohibitory liquor law involved in the proceeding were not repugnant to the constitution of the United States. The trial resulted in a verdict against the defendant, and a judgment thereon removing him from office. This writ of error was brought to reverse that judgment, and the state now moves to dismiss the case for want of jurisdiction, and with that has united a motion to affirm. This can be done under rule 6, § 5, of this court.

As the question of the constitutionality of the statute was directly raised by the defendant, and decided against him by the court, we have jurisdiction, and the motion to dismiss must be overruled; but, as every one of the questions which we are asked to consider has been already settled in this court, the motion to affirm is granted. In Bartemeyer v. Iowa, 18 Wall. 129, it was decided that a state law prohibiting the manufacture and sale of intoxicating liquors was not repugnant to the constitution of the United States. This was reaffirmed in Beer Co. v. Massachusetts, 97 U.S. 25, and that question is now no longer open in this court. In Ames v. Kansas, 111 U.S. 449, S.C.. 4 SUP. CT. REP. 437, it was decided, at the last term, that the remedy by information in the nature of quo warranto, in Kansas, was a civil proceeding, and in Kennard v. Louisiana, 92 U.S. 480, that a state statute regulating proceedings for the removal of a person from a state office was not repugnant to the constitution of the United States if it provided for bringing the party against whom the proceeding was had into court, and notifying him of the case he had to meet; for giving him an opportunity to be heard in his defense; and for the deliberation and judgment of the court. Affirmed.


text: Talk:Foster v. State of Kansas Johnston/Opinion of the Court


text:
Ranney v. Barlow

R. P. Ranney and J. M. Adams, for plaintiff in error.

S. Burke, for defendants in error.

WOODS, J.

title: Ranney v. Barlow


text: Talk:Ranney v. Barlow

title: Talk:Ranney v. Barlow


text:
Ranney v. Barlow/Opinion of the Court

This was an action at law brought by the defendants in error, Samuel L. M. Barlow and Charles Day, against the plaintiff in error, Silas S. Stone. The petition was framed according to the rules prescribed by the Code of Ohio, and was 'for money only.' The action, generally stated, was based on the following averments of the petition, to-wit, that the defendant, being the joint owner, in common with the plaintiff, of a tract of land, and being their agent to take care of and negotiate sales of the land, either in parcels or as a whole, sold the entire tract for $500,000, paid them $200,000 of the purchase money, and fraudulently retained $300,000 for himself. The suit was brought to recover $50,000 and interest, that sum being, as the petition alleged, the share of the plaintiffs in that part of the purchase money which the defendant had unlawfully and fraudulently retained and appropriated. The answer of the defendant denied all the charges of fraud made in the petition, and alleged that the defendant made the sale of the plaintiffs' half of the property by virtue of a power of attorney authorizing him to sell it for $200,000, and stated facts, showing, as the defendant insisted, that he was guilty of no fraud in procuring the power of attorney; and that the plaintiffs, before executing it, were fully advised by the defendant of his purpose to sell his own half of the land for a larger price than that for which the power of attorney authorized the sale of the plaintiffs' half, the defendant undertaking to pay all the expenses of bringing about a sale; and that, with full knowledge of the facts, plaintiffs agreed to the arrangements for selling the property and executed the power of attorney.

The pleadings and the bill of exceptions, which embodied all the evidence, disclosed the following facts: The plaintiffs, on or before November 6, 1871, were the owners of an undivided half in common of certain lots, forming a part of what was known as the 'Central Tract,' situate in the city of Cleveland, in the state of Ohio, and the defendant, Stone, was the owner of the other undivided half in common. For several years previous to November 6, 1871, and until the sale of the property as hereafter mentioned, the defendant was the agent of the plaintiffs, having the charge and management of their estate in said property, with power to 'work up' sales of the same, either in parcels or as a whole, but without power to make contracts of sale or to convey. On or about November 6, 1871, the defendant, who was a resident of Cleveland, sent by mail to the plaintiffs, who resided in New York, a power of attorney, dated November 7th, to be executed by them, which, when executed, would authorize him to sell, by contract in writing, their undivided half of the real estate above mentioned for the consideration of $200,000, of which $40,000 was to be paid cash down, and the residue in eight annual payments of $20,000 each, with interest at 6 per cent., to be secured by mortgage on the property sold. The authority conferred by the power was to expire in 60 days from the date of the power. In a letter written by the defendant to the plaintiffs, which inclosed the power of attorney, and which bore date November 6, 1871, the defendant said, referring to the power of attorney: 'I think I can sell, on the terms therein set forth, the land therein mentioned to a responsible party, within sixty days from now, and perhaps by the first of December next, but, in order to do so, entire secrecy must be observed in regard to the matter, and I must be allowed to bring about the sale in my own way.' He added: 'I advise the sale and desire an immediate reply. If a sale is made, I expect to make special terms for my interest.' After the receipt of this letter and the draft of the power of attorney, to-wit, about November 12th, the plaintiffs sent their agent, Mr. Tatlow Lackson, to Cleveland, with a letter to the defendant, in which they said: 'He,' Mr. Jackson, 'goes at our express request to confer with you in reference to the subject-matter of yours of the sixth instant. You will oblige us by communicating to him as freely as you would to us. The proposition contained in your letter is of such magnitude as to enjoin the most thorough canvass and consideration-hence Mr. Jackson's mission.'

There was evidence tending to show that Jackson passed three days in Cleveland, much of the time in the company of the defendant; that he was taken by the defendant over, and shown a large part of, the city, and that the land in question was shown to him, and its situation explained by the defendant; and that during that time the defendant repeatedly told Jackson that he would not sell his half of the land for the price he had named in the power of attorney as the price for the plaintiff's half, but would demand a larger price, and gave as reasons why he was entitled to more for his half than the plaintiffs were for theirs, that he could make a good title at once, which the plaintiffs, on account of the incumbrances on their half, could not do; that there would be large expenses incurred in bringing about a sale, which he expected to pay, and the payment of which would compel him to sell other lands; that he might be compelled, in order to make a sale, to put other property out of the market by buying it; that he had made expensive improvements on other property belonging to him in Cuyahoga valley, with a view to enhance the value of the Central Tract, which embraced the property in question; and that the use to which their common property might, if sold, be put would depreciate the value of other adjacent real estate on the Cuyahoga river owned by him. On November 17, 1881, which, as the testimony tended to show, was about the close of his visit to the defendant in Cleveland, Jackson wrote a letter to Day, one of the plaintiffs, which was received by the person addressed, in which he said: 'I am confirmed in the opinion that you had best permit Mr. Stone to do as he thinks best with Central Tract. I put it to him that you would prefer to go half-and-half with him in any sale he might make, in place of putting any valuation on your half interest. He responded that it was probable that, for his half interest, he might have to make a trade, which would bring in some other property belonging to him, making it impossible for such an arrangement, and that he intended to sell with you; that is, that he is not a purchaser.'

Evidence was also introduced tending to show that on December 1, 1871, Charles Day, one of the plaintiffs, had an interview in Cleveland with the defendant in reference to the sale of the property, in which interview the defendant told him that if the sale was made, he was unwilling to divide the property equally; that if he sold his half, he should sell it for more than the price named in the power of attorney; that he did not want the power of attorney unless he was going to be left perfectly free to manage his half. To which Day replied that the power of attorney would come very quick after he got back to New York; that he was perfectly satisfied and ready to sell the property; and that, in the same interview, the defendant told Day, as reasons why he proposed to demand more for his half of the property than he demanded for the plaintiff's half, that he intended to pay the expenses of the sale; that he had to use land for that purpose, and might have to buy other land. On the same day, December 1st, Day wrote to his co-plaintiff, Barlow, as follows: 'After a lengthy interview with Mr. Stone, I am strongly inclined to believe that we had better authorize him to sell that portion of the Central Tract, 485 lost, in the manner proposed by him;' and then, after giving his reasons for the opinion, added, 'I therefore think it wise to conform to the terms of his proposition.'

Testimony was given to the jury tending to show that after all this, and about December 7th, the power of attorney sent by the defendant to the plaintiffs was executed by them and mailed to the defendant, who received it about December 9th. After receiving from the plaintiffs the power of attorney, the defendant, on December 9, 1871, made a written proposition to the Cleveland, Columbus, Cincinnati & Indianapolis Railroad Company for the sale to it of the entire tract of land for $500,000, and added: 'For one undivided half of the property I am prepared to give a good and sufficient warranty deed, free of incumbrance, and take a mortgage to secure the deferred payments; for the other half, which is slightly incumbered, I am prepared to give a contract from S. L. M. Barlow and Charles Day, who hold the legal title, and will speedily clear it of incumbrance, and have consented that the cash payment and the contract itself shall be placed in the hands of the Society for Savings until they can make a clear title.' In pursuance of this proposition a contract was executed, bearing date December 16, 1871, by which the plaintiffs, acting by the defendant as their attorney in fact, sold and agreed to convey their undivided half of the premises to the railroad company for the consideration of $200,000, in the installments mentioned in the written proposition of December 9th, which the railroad company agreed to pay. The contract was executed in less than 60 days after the date of the power of attorney, and was in all respects in conformity with the authority conferred thereby. The defendant, by a contract also dated December 16, 1871, agreed to convey by a deed of general warranty his own undivided half of the same premises to the railroad company for the consideration of $300,000, $60,000 whereof was to be paid on the delivery of the deed, and the residue in eight annual installments of $30,000 each. The latter contract contained a provision that unless the plaintiffs within one year delivered the deed to the railroad company for their undivided half of the land the railroad company should elect whether it would carry out its contract with the defendant or rescind the same.

There was some evidence tending to show that $200,000 was a fair price for the plaintiffs' undivided half of the land, and there was no evidence that, when the power of attorney was executed, the plaintiffs were ignorant of its value. There was no evidence tending to show that before December 7, 1871, the day when the power of attorney was executed by the plaintiffs, the defendant had received any offer or intimation from the railroad company that it would pay $500,000 for the property, or that such an offer had been received by the defendant from any one else.

On January 29, 1872, the railroad company, on account of the precarious health of the defendant, decided to receive at once his deed for his share of the property. The deed was executed and delivered on that day, and the railroad company paid the defendant $60,000 of the consideration, and gave its note secured by mortgage for the residue. In July following the plaintiffs, having cleared the incumbrances from their half of the property, executed a deed therefor to the railroad company and received $40,000, the cash payment of the consideration, and notes secured by mortgage for the deferred payments. Upon this state of the evidence, the court, besides other charges, gave the jury the following: 'It is not enough that the defendant should have written the plaintiffs, when he applied for the power of attorney, that he expected to make special terms for himself, or that he should have told the plaintiffs or their agent that he would not sell for the price fixed by them, but expected to get more for his share. He cannot claim and take to himself the benefit of the discrimination in his favor, unless the evidence satisfies you that he had fully communicated all the facts to the plaintiffs before he consummated the sale,-all the facts known to him in relation to the chances of selling,-so as to enable the plaintiffs intelligently to decide whether they would consent to the proposed discrimination in defendant's favor or not. Such would be the rights of the parties, even if the defendant did not know, or had not reason to believe, before he accepted the said power of attorney and undertook to execute it, that the land could be sold for more.'

The bill of exceptions states that 'the jury, having been charged by the court, retired for deliberation, and, after being out for the space of about one day, came into court and made a written request to the court for further instructions, as follows: 'Shall the jury understand the court to charge that the defendant is liable as agent, if it is found that he failed to reveal any material facts to plaintiffs relative to the value of the property and terms of sale?' And thereupon the court gave to the jury the further instruction or charge following, to-wit: 'In answer to your inquiry, propounded by your foreman, I have to repeat that an agent is required by law to deal fairly with his principals in all things. One contention of the defendant in this case is that the power of attorney under which the defendant made the sale of the plaintiffs' interest in the land fixed the price and terms of the sales; and that plaintiffs were concluded by the authority thus given. This would be true if the defendant obtained the power after fully and fairly communicating to them all the knowledge or trustworthy information which he possessed, so that they could as well judge of the value of the property, and the propriety of selling it on the terms authorized by the power, as the defendant could himself do; but if he failed to communicate the facts, and thereby induced plaintiffs to execute to him the power under which he acted in making the sale and conveying the title to the purchaser, plaintiffs could not be conclude or estopped by reason of anything contained therein. The court further instruct you that if you shall find that the power of attorney was obtained fairly, and after the communication by defendant to the plaintiffs of all the material facts and information, as aforesaid, but that he ascertained afterwards that he could sell the land, the whole of it, at $500,000, and that he refused to disclose the price or the name of the purchaser, but undertook to bring about the sale in his own way, he was in duty bound to accept the offer of $500,000 made by the purchasers, as well for his principal as for himself; and if he, instead of making the sale for the benefit of both, sold plaintiffs' part for $200,000 and his own for $300,000, he is not authorized to retain the excess to himself, but that he is, in equity and good conscience, bound to share the same with his principals, unless he made a full disclosure to them of all the facts material for them to know, and they, with such full knowledge and for reasons which they deemed sufficient, consented to the unequal division of the purchase money which the defendant made of it. If he did not so disclose the material facts in regard to the value or the amount received, and obtain plaintiffs' consent that he might retain three-fifths of the purchase money, as it is admitted he did, the plaintiffs are entitled to recover the one-half of such excess, so received and retained by defendant, as per my former instructions."

The jury again retired, and, after further deliberation, returned a verdict for the plaintiffs for $57,944.82, for which sum, with costs to be taxed, the court rendered judgment against the defendant. To reverse that judgment this writ of error is brought. The defendant below, plaintiff in error in this court, assigns for error the charges of the court above recited.

We think there was error in the charges complained of. To test their correctness we must assume the truth of the facts which the testimony submitted to the jury tended to prove. It was the duty of the court to submit to the consideration of the jury the testimony adduced by the defendant to sustain the defenses set up in his answer, and the charge should have been based on the hypothesis that the defenses which the testimony tended to prove were proven. The evidence tended to show that no fraud was practiced by the defendant in procuring the power of attorney; in fact, the charge proceeds on this assumption; it tended to show that the plaintiffs, after full conference with the defendant, consented that he might secretly conduct the negotiations for the sale; that he might manage the sale of the property in his own way, and that he should be free to dispose of his own half as he pleased; that in case he sold their half for $200,000, he might sell his own half for any price he could get. If the plaintiffs gave their consent in advance of any sale, it was immaterial to them what price the defendant got for his share of the land, and he was under no obligation to disclose the price to the plaintiffs and ask their consent to retain it. The effect of the charge of the court was to withdraw from the jury all the evidence tending to show the antecedent assent of the plaintiffs, fairly obtained, to the sale made by the defendant, and to instruct the jury that nothing but their subsequent assent could be effectual. This was error. Adams v. Roberts, 2 How. 486; Reese v. Beck, 24 Ala. 651; Grube v. Nichols, 36 Ill. 92; Chappell v. Allen, 38 Mo. 213, 220.

The charge having assumed that there was no fraud in the procuring of the power of attorney, and the defendant having submitted testimony tending to show that there was no fraud in his doings after the power of attorney was procured, but that whatever was subsequently done by him in making the sale was done with the consent of the plaintiffs given in advance, it was error to charge the jury that the plaintiffs were entitled to recover, unless the defendant informed the plaintiffs at what price he could sell or had sold his share, and they renewed their consent that he might retain it. For the error indicated the judgment of the circuit court must be reversed, and the cause remanded, with directions to grant a new trial; and it is so ordered.

title: Ranney v. Barlow/Opinion of the Court


text: Talk:Ranney v. Barlow/Opinion of the Court


text:
Snyder v. United States

J. D. Rouse and ''Wm. Grant'', for plaintiff in error.

Asst. Atty. Gen. Maury, for defendant in error.

GRAY, J.

title: Snyder v. United States


text: Talk:Snyder v. United States

title: Talk:Snyder v. United States


text:
Snyder v. United States/Opinion of the Court

This is an information in several courts, under section 3372 of the Revised Statutes, for the forfeiture of the tobacco, machinery, tools, and materials in a tobacco manufactory, for violations of the internal revenue laws. The property was released upon the claimant's giving a bond to abide the final decree. The claimant demurred to the information, as not setting forth any facts warranting the seizure or forfeiture of the property. The demurrer was overruled, the claimant filed an answer, and, upon a trial, a verdict was returned in this form: 'We, the jury, find a verdict for the government, evaluating the goods and machinery seized at a sum of one thousand dollars.' The claimant moved, in arrest of judgment, that several of the counts were insufficient, and that the verdict was general upon all the counts, and was vague and uncertain, and not responsive to the issue. The motion was overruled, and judgment rendered for the United States, and the claimant sued out a writ of error.

Informations under the revenue laws for the forfeiture of goods, seeking no judgment of fine or imprisonment against any person, are not strictly criminal cases, in which the decisions of the circuit court are final, unless a division of opinion is certified; but they are civil actions, of which this court has jurisdiction in error, without regard to the sum or value in dispute. Rev. St. § 699; Pettigrew v. U.S. 97 U.S. 385. Yet, as has been expressly adjudged, they are so far in the nature of criminal proceedings as to come within the rule that a general verdict upon several counts, seeking in different forms one object, must be upheld if one count is good. Clifton v. U.S. 4 How. 242, 250. As one of the counts in this case is admitted to be good, it is unnecessary to consider the objections taken to the other counts.

The verdict, though expressed in bad English, clearly manifested the intention and finding of the jury upon the issue submitted to them, and the court rightly gave judgment upon it. Rev. St. § 954; Parks v. Turner, 12 How. 39, 46; Lincoln v. Iron Co. 103 U.S. 412.

Judgment affirmed.


text: Talk:Snyder v. United States/Opinion of the Court


text:
Board of County Commissioners of Labette Company Kansas v. United States

B. W. Perkins, for plaintiffs in error.

S. E. Brown, for defendant in error.

The relator, on June 7, 1877, recovered a judgment in the circuit court of the United States for the district of Kansas, against the township of Oswego, in the county of Labette, in that state, for $9,221.34, with interest and costs, which is still in force and unpaid. That judgment was recovered upon coupons for unpaid interest on bonds, issued in the name and on behalf of Oswego township, by the board of county commissioners of Labette county, pursuant to the act of the legislature of the state, entitled 'An act to enable municipal townships to subscribe for stock in any railroad, and to provide for the payment of the same,' approved February 25, 1870, and were payable to the Missouri, Kansas & Texas Railway Company, or bearer. On his information, an alternative writ of mandamus was allowed by the circuit court, June 10, 1881. The command of the writ was as follows: That 'the said board of county commissioners of Labette county, state of Kansas, do forthwith levy and collect and pay over, or cause to be collected and paid over, to the relator, a tax on all the taxable property within the township of Oswego as constituted in the year 1870, and to do and perform in the manner and at the time required by law each and every and all singular the matters and things in respect to this special tax that are required by law by you to be done in respect to general taxation; and we do further command that you, the said clerk of the said board of the said county, do enter or record the levy of such tax, and enter the same on a tax roll or list, and record the proceedings of said board in respect to such taxation, and all proceedings that by law should be had and recorded in reference to taxation, and determine, extend, and carry out the sum or sums of money to be levied or extended against each and every tract or lot of land, and all other taxable property, as provided by said laws, and set down such tax in a separate column, and complete the said tax roll or list in the manner and at the time required by law, and attach thereto your certificate and the seal of your office and the seal of your county and corporation, and that you deliver the same, so sealed and signed, to the treasurer of your said county, at the time and in the manner required by law, and that you do and perform in the proper manner and at the proper time each and every act and thing by law required to be done in respect to taxation; and we command you, the said treasurer of said county, to accept and receive the said tax roll or list from said clerk, and to proceed as provided by law to collect such tax and to publish the list required by law, and to distrain for said tax, and to advertise lands for sale for the non-payment of such tax, and to offer the same for sale, and to strike them off at such sale, all to be done in the manner and at the time required by law, and to take each and every and all and singular the process and proceedings, and do and perform each and every act and thing imposed upon you by the law in respect to the enforcement or collection of taxes, the same in respect to this tax as to other and general taxes, at the time and in the manner provided by law, and that you pay the said moneys to the relator, or into this court for his use.' To this the respondents jointly and severally demurred, and, for causes of demurrer, assigned the following: (1) Because the court has no jurisdiction of the persons of the respondents or the subject of the action; (2) because of defect of parties defendant; (3) because several causes of action are improperly joined; (4) because the writ does not state facts sufficient to entitle the relator to the relief demanded against the respondents. This demurrer was overruled by the circuit court, and a per-emptory writ of mandamus awarded, to reverse which judgment this writ of error has been sued out.

[Argument of Counsel from pages 219-220 intentionally omitted]

MATTHEWS, J.


text: Talk:Board of County Commissioners of Labette Company Kansas v. United States


text:
Board of County Commissioners of Labette Company Kansas v. United States/Opinion of the Court

The objection that the circuit court had no jurisdiction to issue its mandamus to the plaintiffs in error is based upon the supposition that, because they are not parties to the judgment against Oswego township, and are not officers of or representatives of that municipal corporation, but are officers of the county of Labette, the proceeding against them is the exercise of an original jurisdiction, which does not belong to that court. It is quite true, as it is familiar, that there is no original jurisdiction in the circuit courts in mandamus, and that the writ issues out of them only in aid of a jurisdiction previously acquired, and is justified in such cases as the present as the only means of executing their judgments. But it does not follow because the jurisdiction in mandamus is ancillary merely that it cannot be exercised over persons not parties to the judgment sought to be enforced. An illustration to the contrary is found in that class of cases of which Krippendorf v. Hyde, 110 U.S. 276, S.C.. 4 SUP. CT. REP. 27, is an example.

The question is whether the respondents, to whom the writ is addressed, have the legal duty to perform, which is required of them, and whether the relator has a legal right to its performance from them, by virtue of the judgment he has already obtained. If so, then they are, as here, the legal representatives of the defendant in that judgment, as being the parties on whom the law has cast the duty of providing for its satisfaction. They are not strangers to it, as being new parties, on whom an original obligation is sought to be charged, but are bound by it, as it stands, without the right to question it, and under a legal duty to take those steps which the law has prescribed as the only mode of providing means for its payment.

It is next objected that the trustee of Oswego township is a necessary party in the mandamus, as the officer charged by law with the duty of levying and collecting the tax for the payment of judgments against it, or at least whose concurrence in the levy is made necessary to the valid action of the county commissioners. The statutes of Kansas which govern this question were considered by this court in the case of Cherokee Co. Com'rs v. Wilson, 109 U.S. 621; S.C.. 3 SUP. CT. REP. 352. It was there held to be the duty of the county commissioners, when the office of township trustee was vacant, to levy the tax upon the township property for the payment of township debts, under the general law regulating the subject. In the present case it does not appear that there was no trustee of the township who could act. But we are of opinion that in regard to bonds issued for railroad purposes, and to judgments rendered thereon, for principal or interest, as in the present case, the concurrence of the trustee of the township is not necessary to the levy of the tax necessary for their payment, but that the duty is laid upon the commissioners of the county to levy the tax upon the township for that purpose. This we think is the fair result of a comparison of the various previsions on the subject contained in the original legislation under which the bonds were issued, with the amendments passed and in force at the time these proceedings were begun, including the act of March 9, 1874, (Sess. Laws Kan. 1874, p. 41, and section 6, c. 107, Laws Kan. 1876.) Indeed, it was expressly decided in Cherokee Co. Com'rs. v. Wilson, ubi supra, that in no event was the assent and concurrence of the township trustee necessary to the action of the commissioners of the county, as the latter were required to levy all taxes required by law upon the township, even though the township trustee refused to consent; and when it was a matter of discretion and expediency the judgment of the county commissioners was paramount. As to the bonds upon which the relator's judgment is founded, we think it was the legal duty of the commissioners of the county to make the proper levy of a tax for their payment, without regard to the trustee of the township.

It is further objected that the demurrer to the alternative writ of mandamus should have been sustained by the circuit court, on the ground of a misjoinder of parties defendant, it being alleged that the duty required of the county clerk and that of the county treasurer were separate and distinct from each other, and from that of the county commissioners; that neither the clerk nor the treasurer could act in the collection and payment of the tax until after its levy by the commissioners; and that as to each of those officers it was shown on the face of the writ that he could not be in default. The clerk and the treasurer do not, it will be observed, make returns to the alternative writ of their willingness to perform their several duties in reference to this tax when the time for them to act shall arrive; nor are they satisfied with several demurrers to the writ, on the single ground that, as to them, it is premature, and therefore defective by reason of the misjoinder; but they join with the county commissioners in demurring to the writ, on the ground that it does not state facts sufficient to entitle the relator to the relief demanded. Their position in the record is not altogether consistent with the presumption they claim the benefit of, that they will each perform the duty required of him by the law when the time arrives for its punctual performance. But the objection does not apply in the present case.

Speaking of the writ of mandamus, as employed here, this court, in Riggs v. Johnson Co. 6 Wall. 166-198, described it as 'a proceeding ancillary to the judgment which gives jurisdiction, and, when issued, becomes a substitute for the ordinary process of execution to enforce the payment of the same, as provided in the contract.' An ordinary execution upon a judgment at law commands the officer to whom it is addressed to perform a series of acts, to levy on goods and chattels, lands and tenements, of the judgment debtor, and, if on the latter, to appraise their value, to advertise the same for sale, to make sale of the same at the time and place and in the manner prescribed by law, and apply the proceeds to the payment of the judgment,-and these are to be performed successively. There is no incongruity in such a writ. It would not be complete or effective without it embraced all the particulars which, in law, are essential to the full duty contemplated by it, the performance of which is necessary to secure its benefits to the party who sues it out. So, here, the object of this writ, though including many particular steps in obeying it, is, nevertheless, single, in that it is intended to obtain an end which is the result of the means prescribed. The command of the writ is to perform the general duty, which is obeyed by performing the successive steps which constitute it. Clearly, the writ would not be chargeable with duplicity if addressed to one person, although it commanded the performance of a series of acts, each of which was a condition of the performance of its successor, where the right of the relator consists in the result legally flowing from the combined whole. It can make no difference in principle that in a particular case the law, instead of casting the performance of the entire duty upon a single person, has divided it among several, each to perform but one act in the series, and each acting independently and not as responsible to any of the others, but all required to co-operate in the attainment of the single result, and by a continuous and uninterrupted succession, so as to preserve the integrity and unity of the performance as an entire duty.

The relator is entitled to an effective writ, and he can have it only on the terms of joining in its commands all those whose co-operation is by law required, even though it be by separate and successive steps, in the performance of those official duties, which is necessary to secure to him his legal right. Otherwise the whole proceeding is liable to be rendered nugatory and abortive. For the levy and collection of a tax is not only an entire thing, although accomplished by successive steps and by separate officials, but is a continuous transaction, each one taking it up where his predecessor left it; and if the relator was compelled to obtain a separate mandamus against each person charged with the performance of a single service, the very delay and break in the continuity of the process might be, by the terms of the law itself, a sufficienct answer to each succeeding writ; and if it were not, it would prolong the proceeding to such indefinite length as to deprive the writ of the very character of a remedy. So that, if such a precedent could be regarded as an innovation upon established practice, it could not be considered a departure from the principle of the jurisdiction; for, to quote what Lord MANSFIELD said in Rex v. Barker, 3 Burr. 1267, 'the original nature of the writ, and the end for which it was framed, direct upon what occasions it should be used. It was introduced to prevent disorder from a failure of justice and defect of police. Therefore it ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one.' The present writ, however, is not without precedent, modern and ancient. It is, indeed, precisely like that which was passed upon in the case of the Cherokee Co. Com'rs v. Wilson, ubi supra, although there the objection was made by the commissioners alone, who, it was held, were not entitled to complain on that account.

In the case of Farnsworth v. Boston, 121 Mass. 173, cited and approved in Attorney General v. Boston, 123 Mass. 460, where an owner of land, assessed to pay for an improvement, had, under the statute, a right to surrender his estate, and receive compensation for its value, which the city council sought to defeat by an attempted vacating of the assessment, which it was held that could not lawfully do, a mandamus was issued, not only to the city council to take the land, but also to the mayor to sign the description and statement, although he could not do so, or be in default for not doing so, until the city council had passed an order taking the land, and although he might, by the statute, sign the description and statement at any time within 60 days after the taking.

The case of The King v. The Mayor and Burgesses of Tregony, 8 Mod. 111, was a motion for a peremptory mandamus, where a former mandamus was directed to the mayor and burgesses of Tregony, in Cornwall, commanding them, quod eligetis et juretis majorem, etc., secundum authoritatem vestram, etc. 'It was moved,' says the report, 'for a supersedeas to that mandamus, for that the writ was not good, because it was directed to the mayor and burgesses to elect and swear a mayor, whereas the power of electing is only in the burgesses, and the power of swearing in the mayor alone; so that the mayor cannot make a return of this writ as directed to him to elect, nor the corporation as directed to them to swear a mayor, so that if the burgesses should make a return as to the swearing part, they would be usurpers, and if they do not make a return, they will be in contempt of this court. Besides, it is incongruous for a mandamus to be directed to swear a mayor not yet elected,' etc. But the court were all of opinion in this case that they ought to make a return, for the writ commanding them 'quod eligetis et juretis secundum authoritatem vestram,' it shall be taken reddendo singula singulis, and to be the return of both. Accordingly, a return having been made, the objection was renewed, and was further argued, but the court remained of the same opinion on this point, and on the final argument for a peremptory writ it was finally said, (page 128:) 'The objection to the writ is that it is directed 'To the mayor and burgesses to elect and swear a new mayor,' which is wrong; for though the mayor and burgesses are to elect, yet it is the mayor alone who must administer an oath to the person, for the burgesses cannot; therefore, this direction is wrong. But this may receive a very plain answer by a reasonable construction of the matter distributively in the manner as directed by the writ, the words being 'eligetis et juretis secundum authoritatem vestram,' so that it is a writ to the body corporate to elect, they having the inheritance as to the election of a mayor; and it is a writ to the mayor, who has a special power to swear the person elected into the office; so that reddendo singula singulis, the writ is well directed. And it could not be otherwise, unless there had been two writs granted, the one to elect, and the other to swear the person elected, so that this, being a ministerial writ, is so far good.'

The same point had been previously raised and decided in The King v. The Mayor of Abingdon, 1 Ld. Raym. 559, by Chief Justice HOLT, who said: 'There have been a hundred writs directed to the mayor and aldermen of London in cases of acts to be done by them separately.' The report continues: 'The second exception to the writ was to that part of the writ which commanded the mayor to swear Sellwood and Spinnage, that they sued this too soon; for a mandamus ought not to go until the officer has refused to do the act and his duty; or, at least, that there was some person who had right to have the thing done to them, which was not in this case, because they were not yet elected; that this was to sue a mandamus quia timet, and, like the case of an original bearing teste, before the cause of action accrued. But per HOLT, C. J., it will be well enough in this case, because they are acts depending the one upon the other; first, they ought to elect him, and then the mayor ought to swear him. And the writ was held good, and the return disallowed, and a peremptory mandamus was granted.'

We are of opinion, therefore, that there is no error in the judgment of the circuit court, and it is accordingly affirmed.


text: Talk:Board of County Commissioners of Labette Company Kansas v. United States/Opinion of the Court


text:
Bradstreet Company v. Higgins

W. Hallett Phillips and C. L. Dobson, for motion.

Henry Wise Garnett, for opposition.

WAITE, C. J.

title: Bradstreet Company v. Higgins


text: Talk:Bradstreet Company v. Higgins

title: Talk:Bradstreet Company v. Higgins


text:
Bradstreet Company v. Higgins/Opinion of the Court

This record shows that Higgins, the defendant in error, brought suit against the Bradstreet Company for $8,000, the price and value of certain property of his which the company had appropriated to its own use. The answer of the company contained (1) a general denial of the allegations of the petition; (2) a counter-claim of $1,104.18 for moneys collected by Higgins for the use of the company and not paid over; and (3) a counter-claim of $1,833.42, the expenses of the office of the company at Kansas City over its receipts, which Higgins, as superintendent of the office, was bound to pay. Higgins in his reply admitted the first counter-claim, and consented to its being applied as a credit upon the demand for which his suit was brought. As to the second counter-claim, his defense was, in effect, that the legitimate expenses of the office at Kansas City while he was superintendent, which he was bound to pay, did not exceed its legitimate receipts. Upon these issues a trial was had, which resulted in a verdict and judgment in favor of Higgins for $3,333.92. Upon the trial a bill of exceptions was taken by the company, from which it appears that evidence was introduced by the company 'tending to show that the legitimate expenses of the Kansas City office exceeded its legitimate receipts, during the time plaintiff acted as its superintendent, in the sum of $61.10, including plaintiff's salary of $100 per month as expenses.' This writ of error was brought by the company, and Higgins now moves to dismiss because the value of the matter in dispute does not exceed $5,000.

In Hilton v. Dickinson, 108 U.S. 165, S.C.. 2 SUP. CT. REP. 424, it was decided, on full consideration, that our jurisdiction for the review of the judgments and decrees of the circuit courts in this class of cases depends on the value of the matter in dispute here, and that it is the actual matter in dispute, as shown by the whole record, and not the ad damnum alone which governs. Here the recovery against the company was less than $5,000, and that, according to all the cases which were fully collected and commented on in Hilton v. Dickinson, it is not of itself enough to give us jurisdiction. The right of the company to bring the case here, therefore, depends on the jurisdictional effect of its various counter-claims. As the first of these claims was admitted by Higgins in his reply, there could not have been below, and there cannot be here, any dispute about that. The conclusive presumption upon the record is that the amount of this claim was credited upon the sum found due from the company for the property about which the suit was brought, and the verdict and judgment given only for the balance remaining after that deduction was made. As to the second, the record shows that while the claim in the pleadings was for $1,833.42, the evidence introduced in support of it only tended to prove that there was $61.10 due from Higgins on that account. The dispute in this court, therefore, according to the record, is (1) as to the right of Higgins to retain his judgment against the company for $3,333.92; and (2) as to the right of the company to recover $61.10 from Higgins. As these two sums combined do not make $5,000, it is clear we have no jurisdiction, and the motion to dismiss must be granted. Had it not been for the statement in the bill of exceptions, which, in effect, limited the counter-claim to the amount which the evidence tended to prove, the case would have been different, for then it would have appeared that the company might have been entitled to recover the whole amount of $1,833.42, after defeating the entire claim of Higgins, thus making the apparent value of the matter in dispute here in excess of our jurisdictional requirements. As it is, however, we can look only to the statement in the bill of exceptions of what the amount in dispute under this claim actually was. Dismissed.


text: Talk:Bradstreet Company v. Higgins/Opinion of the Court


text:
Hancock v. Holbrook (112 U.S. 229)

''Eppa Hunton, Jeff. Chandler, J. D. Rouse, and Wm. Grant'', for appellant.

''Thos. J. Semmes and Robert Mott'', for appellee.

WAITE, C. J.

title: Hancock v. Holbrook (112 U.S. 229)


text: Talk:Hancock v. Holbrook (112 U.S. 229)

title: Talk:Hancock v. Holbrook (112 U.S. 229)


text:
Hancock v. Holbrook (112 U.S. 229)/Opinion of the Court

This suit was brought in a state court of Louisiana on the twenty-fifth of November, 1876, by Edward C. Hancock, a citizen of Louisiana, against Eliza Jane Holbrook, George W. Nicholson, R. W. Holbrook, and Chas. T. Howard, all of the city of New Orleans, as stated in the petition, to establish an alleged title of Holbrook to 20-51 parts of all the property, rights, assets, and good-will of the 'New Orleans Picayune Newspaper & Printing Establishment,' then in the possession of the defendants at New Orleans. All the defendants were served with process by the sheriff of the parish of Orleans. On the thirteenth of December, 1876, Nicholson filed in the state court a petition for the removal of the suit to the circuit court of the United States for the district of Louisiana. In this petition he stated that he was a citizen of the state of Mississippi and Hancock a citizen of the state of Louisiana. No mention was made of the citizenship of the other defendants, and no other ground of removal was given than that Hancock and Nicholson were citizens of different states. It does not appear that this petition was ever formally presented to the state court. The transcript only shows that it was filed. On the nineteenth of December, 1876, after the date of the filing of the petition for removal, the petition in the suit was amended by adding the name of Richard Fitzgerald, a citizen of Louisiana, as a defendant, and a summons was thereupon issued to bring this new defendant into court.

On the eleventh of December, 1877, nearly a year after the petition for removal was filed, the clerk of the state court made a transcript of the record and proceedings in that court, and annexed his certificate of its correctness. On the same day the attorney of Hancock indorsed on the transcript the following: 'I consent, on behalf of plaintiff, that this shall be considered a correct transcript of the record of the suit of E. C. Hancock v. Mrs. E. J. Holbrook, No. 23,653, Third district court, parish of Orleans, the same to be filed in the United States circuit court, in accordance with the order to transfer.' The transcript, thus certified and indorsed, was filed in the circuit court of the United States on the thirteenth of December, 1877. No motion was ever made to remand the cause, and on the tenth of January, 1878, proceedings were begun in the cicuit court, at the instance of the attorney for the plaintiff. Answers were afterwards filed by the defendants and testimony taken, upon which the parties went to a hearing, which resulted in a decree, on the thirteenth of March, 1881, dismissing the bill. From this decree Hancock appealed.

It was decided at the last term, in ''Mansfield, C. & L. M. Ry. Co. v. Swan'', 111 U.S. 379, S.C.. 4 SUP. CT. REP. 510, that when a suit which has been removed from a state court is brought here by appeal or writ of error, and it does not appear on the face of the record that the citizenship of the parties was such as to give the circuit court jurisdiction upon the removal, the judgment or decree of the circuit court will be reversed without inquiry into the merits, and the cause sent back with instructions to remand it to the state court from which it was improperly removed. This is such a case. All the defendants except one were citizens of the same state with the plaintiff, and there is no pretense of a separable controversy. Under these circumstances the cause was not removable, (Removal Cases, 100 U.S. 457,) and the circuit court, consequently, had no jurisdiction. In the same case it was also decided that upon such a reversal this court may make such order in respect to costs of the appeal or writ of error as justice and right shall seem to require. In that case the removal was made on the application of the appellant, and although a judgment of reversal was entered, costs were given against him. It appeared there, however, that the appellee, after the case got to the circuit court, moved that it be remanded to the state court, and only remained in the circuit court because his motion was overruled. He submitted to the jurisdiction of the circuit court upon compulsion.

Here the appellee petitioned for the removal. The cause was not, however, docketed in the circuit court until a year after the petition for removal had been filed in the state court, and it nowhere appears that any action was taken in the latter court in reference to its own jurisdiction. Neither does it appear by which party the case was docketed in the circuit court. It does appear, however, that the appellant consented to the docketing, and that he made no effort whatever to have the case remanded. He was the first to move in the circuit court, and there is nothing to show that he remained in that court against his will. We are strongly inclined to the opinion that the removal was effected with the consent of both parties, and without the attention of either of the courts having been called to the jurisdictional facts. Under these circumstances each party should pay one-half the costs in this court.

The decree of the circuit court is reversed, and the cause returned to that court with instructions to remand it to the state court from which it was improperly removed, and with liberty to make such order as to costs accruing in the circuit court after the removal as equity and justice may require.

A judgment will be entered against the appellees for one-half the costs in this court.


text: Talk:Hancock v. Holbrook (112 U.S. 229)/Opinion of the Court


text:
People of the State of California ex rel. Hastings v. Jackson

John N. Pomeroy, for plaintiff in error.

M. A. Wheaton, for defendants in error.

This was a suit brought by the state of California at the instance of S.C.. Hastings to set aside a patent of the state granting the S. 1/2 of section 14, township 5 N., range 1 W., to A. P. Jackson. The lands are part of the 500,000 acres which went to California on its admission into the Union, September 9, 1850, (9 St. 452, c. 50,) under the provisions of the act of September 1, 1841,c. 16, § 8, (5 St. 455.) By that act the lands granted were to be selected by the state in such manner as the legislature thereof should direct, and by the constitution of California (article 9, § 2) they were devoted to the support of schools. The legislature of California, by an act passed May 3, 1852, c. 4, (Acts Cal. 1852, 41,) authorized the governor to issue land warrants to the amount of 500,000 acres in all and deposit them with the treasurer of state. These warrants were to be sold by the treasurer at two dollars per acre, and the interest of the proceeds was set apart 'as a permanent fund for the support of schools.' The purchasers were authorized to locate their warrants in behalf of the state 'upon any vacant and unappropriated lands belonging to the United States within the state of California subject to such location.' Provision was then made for the issue of patents to locators by the state as soon as the lands were surveyed.

The material averments in the complaint filed by the state are that one Isaac Thomas located a school-warrant on the lands in question on the twentieth of June, 1853; that as the government surveys had not then been made, the lines of the location were run by the county surveyor, and a correct entry thereof made in the office of the county clerk; that the government surveys were completed and plats thereof filed in the general land-office on the first of October, 1853; that on the twenty-fourth of December, 1853, Thomas presented his location to the register of the United States land district in which the lands were situated; that the register accepted and approved the location; that afterwards Thomas filed with the register the warrant under which his location was made; that the register wrote the word 'surrendered' across the face of the warrant, and gave to Thomas a certificate setting forth these facts; that Hastings has been duly invested with all the rights of Thomas under his location; that on the fourteenth of February, 1857, Jackson, one of the defendants, with full knowledge of all that had been done by Thomas, located other warrants on the same land, and, on the eighteenth of March, 1863, procured a certificate to that effect from the land-office of the United States, under which a patent was issued to him by the state; that the lands were 'listed' to the state by the United States on the tenth of February, 1870; and that on the eighth of September, 1871, the commissioner of the general land-office canceled the location of Jackson, and returned to him the warrants which had been used in making that location.

The prayer was 'that the said defendants be decreed to deliver up the said patent to be canceled, and that they and each of them, and every person claiming by, through, or under them, or either of them, be perpetually enjoined and restrained from setting up any claim or title to the said premises under and by virtue of said alleged patent,' and for general relief.

The defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, in this: 'The performance of the acts stated in the complaint did not make valid selection of the premises mentioned in the complaint under said school-land warrant No. 133. No valid location of said warrant is shown, nor any valid selections of land under it. The allegations in the complaint as to the effect of the pretended locations, and the rights of I. Thomas and S.C.. Hastings, are mere conclusions of law, and not allegations of facts. The complaint shows upon its face that this action is barred by the statute of limitations of this state. The facts stated show that defendant Jackson was entitled to the patent when it was issued to him.' The court of original jurisdiction sustained the demurrer and dismissed the complaint; and that judgment was affirmed by the supreme court of the state on appeal. This writ of error was brought to reverse the judgment of the supreme court.

[Argument of Counsel from page 235 intentionally omitted]

WAITE, C. J.


text: Talk:People of the State of California ex rel. Hastings v. Jackson


text:
People of the State of California ex rel. Hastings v. Jackson/Opinion of the Court

The first question which presents itself on this record is as to our jurisdiction. The suit, although in form by the state to cancel its patent to Jackson, was in reality between Hastings and Jackson to determine which of the two had in equity the better right to the land in controversy by reason of the locations of school-warrants under which they respectively claimed. There was no dispute about the grant from the United States to the state. That was conceded, and both parties claimed under it. The controversy related only to the alleged conflicting grants of the state. Hastings claimed that Thomas, whose title he had, was the first locator, and therefore, under the legislation of the state, in equity the first grantee of the state, while Jackson claimed that the Thomas location was invalid, and that, consequently, his own title was the best. Both parties thus claimed under the state, and neither asserted title from the United States except through the state. It is, indeed, averred in the complaint that the location of Thomas was accepted and approved by the register of the United States land-office, and that Jackson also obtained a like certificate, which was afterwards canceled by the commissioner of the general land-office, but it is not pretended that either of these things was done by the government officials under the authority of a law of the United States. The act of 1841 provided for a grant by the United States of lands to be selected by the state in such manner as the legislature should direct, and the legislature did, by the act of 1852, in effect, direct that a location of warrants by the holder should operate as a selection by the state of the particular tract located as part of the lands granted. That perfected the right of the state to the land under the act of congress, but gave the locator no rights as against the United States. By the express provisions of the state statute under which he proceeded, his location was to be made 'in behalf of the state,' and he was to look to the state for his patent. What was done by the officers of the United States only showed that the state had, through a holder of one of its school-warrants, made a selection of the particular tract located as part of the lands granted by the act of 1841. This gave the state a right to the title under the act of congress, but the warrant-holder's claim on the state for a conveyance of the land to him grew out of the state statute, and not out of the certificate of the United States officials.

Under these circumstances, the case is clearly governed by Romie v. Casanova, 91 U.S. 379, and McStay v. Friedman, 92 U.S. 723, in which it was decided that in a suit for the recovery of lands, where both parties claimed under a common grantor whose title from the United States was admitted, this court had no jurisdiction for the review of the decisions of a state court upon questions relating only to the title acquired by the several parties, under their respective grants, from the common grantor, and which were not in themselves of a federal character.

Some reliance was had in the argument on the act of congress approved July 23, 1866, c. 219, (14 St. 218,) 'to quiet land titles in California,' but that act was not referred to in the complaint, and, besides, it purports only to confirm the title of the state, which, in this case, is perfect without it. No attempt is made in that act to provide for the settlement of the rights of conflicting claimants under the state. Congress contented itself with the confirmation of the state's title, and left all who claimed under that title to their remedies in the courts or other tribunals provided by law for that purpose.

It follows that we have no jurisdiction of this case, and it is accordingly dismissed.


text: Talk:People of the State of California ex rel. Hastings v. Jackson/Opinion of the Court


text:
Pugh v. Fairmount Gold Silver Mining Company

John W. Ross and Mills Dean, for appellant.

A. T. Britton, J. H. M. Gowen, and A. B. Browne, for appellees.

WOODS, J.


text: Talk:Pugh v. Fairmount Gold Silver Mining Company


text:
Pugh v. Fairmount Gold Silver Mining Company/Opinion of the Court

This was a bill filed on November 26, 1875, by Thomas Hall and Jonathan H. Pugh, trustees, to foreclose a mortgage executed to them on August 22, 1870, by the Fairmount Gold & Silver Mining Company, to secure the bond of the company for $17,000. It appears from the record that at the date of the mortgage the mining company was indebted to vacious persons, who held its promissory notes or certificates of indebtedness, given and bearing date between August 4, 1868, and May 20, 1870, and amounting in the aggregate to $16,387.05, all bearing interest at the rate of 6 per cent. per annum. To secure the payment of this indebtedness to the holders of the notes, the mining company, on August 22, 1870, executed a bond of that date to Hare and Pugh in the penal sum of $34,000, conditioned for the payment to them at the expiration of one year from date of the sum of $17,000, with interest at the rate of 6 per cent. per annum, payable half-yearly in gold. This bond was secured by the mortgage which the suit was brought to foreclose, bearing the same date, and conveying to Hare and Pugh certain mines, a mill-site, mill, and machinery in Clear Creek county, Colorado. Contemporaneously with the execution of the bond and mortgage, Hare and Pugh executed a declaration of trust to the effect that they held the bond and mortgage in trust for the benefit of the holders of the notes of the mining company above mentioned, and that if the mining company should pay off the notes, the bond and mortgage should be taken as paid and satisfied, and should be canceled. The bill averred that the bond was due and wholly unpaid, and prayed a foreclosure of the mortgage. John W. Thackara, Gilbert B. Reed, and others, who, it was alleged, claimed some interest in the mortgaged premises as judgment creditors or otherwise, were made defendants to the bill

It appeared from the record that the defendant Thackara had been super intendent of the mine and general agent of the mining company in Colorado, and was a stockholder. He held by purchase some of the notes or certificates of indebtedness secured by the mortgage issued to other parties, and held other notes issued subsequent to the mortgage to himself for his salary, etc. Prior to the institution of this suit, to-wit, on the twenty-second day of March, 1873, Thackara began suit against the mining company on his notes and a book-account, caused a writ of attachment to be issued against the mining company, and on the thirteenth day of January, 1875, recovered a judgment for $23,442.12. Upon a sale under execution issued on this judgment all the real and personal property of the mining company, including that covered by the mortgage, was sold to Thackara for the sum of $24,873.01, and he assigned the certificate of purchase to the defendant Reed, to whom a sheriff's deed was executed December 15, 1875. It was conceded that Reed had succeeded to all the rights and interests of Thackara. The bill was dismissed as to Thackara, and Reed substituted as defendant in his place. Reed, by his answer, admitted the execution of the mortgage mentioned in the bill to secure the payment of notes made by the mining company, the sum secured by the mortgage not to exceed $17,000. He set up title to the mortgaged premises, claiming under the sheriff's deed executed to him under the sale made to Thackara. He averred that all the notes which had been secured by the bond and mortgage executed to Hare and Pugh, except two held by Samuel Nelson one for $25 and the other for $150, and one held by W. B. Wharton for $100, had either been transferred to Thackara, and were included in the amount of his judgment against the mining company, or had been converted into stock of the mining company and surrendered and were thus satisfied. Neither the mining company nor any of the other defendants made any defense to the suit, and decrees pro confesso were taken against them. The answer of Reed was put in issue by replication. Upon final hearing on the pleadings and evidence the circuit court dismissed the bill, and the complainant Pugh, Hare having died pending the suit, appealed.

It is clear that the complainant was entitled to a decree of foreclosure unless the grounds of defense alleged by the respondent Reed were well taken. The first of these was that the directors of the mining company, who executed the bond and mortgage, did so without authority, and the bond and mortgage were therefore null and void. It is a sufficient reply to the defense to say that no issue is taken by the answer upon the averment of the bill that the bond and mortgage were executed and delivered by the proper officers of the mining company. On the contrary, the answer admits that 'the said mining company, by its officers, on the date aforesaid, made, executed, and delivered to complainants, as trustees, a certain bond,' describing the bond mentioned in the bill, 'and that to secure the said sum of seventeen thousand dollars mentioned in said bond, the said Fairmount Gold & Silver Mining Company, by its officers, made the mortgage in said bill mentioned and upon the property in the bill of complaint described to the complainants.' These admissions preclude the defense set up for the first time at the hearing, that the officers were not authorized to execute the bond and mortgage. The defendant having admitted the execution of the mortgage by the officers of the company, the complainant had the right to rely on the admission, and was not bound to prove it.

The other defense relied on was based on the allegation that the notes which the mortgage was given to secure had been satisfied, except those held by Nelson and Wharton, and these the defendant Reed offered to pay. The facts upon which this defense rests are as follows: On February 8, 1873, the board of directors of the mining company passed the following resolution: 'Resolved, that the board of directors authorize the conversion of certain outstanding and unpaid certificates of indebtedness of the Fairmount Gold & Silver Mining Company, being numbered from 1 to 87, both numbers inclusive, and Nos. 89 to 100, both numbers inclusive, into stock of the said company at the par value thereof, upon the surrender of the said certificate of indebtedness by the holders thereof: provided, that the holders of the said certificates of indebtedness convert the same into stock of the said company, at the par value thereof, within ten days from the date of the passage of this resolution, and all the holders convert.' The certificates of indebtedness mentioned in this resolution were the notes which the mortgage was given to secure. It is insisted by the defendant Reed that all the notes of the company, except those held by Thackara, Nelson, and Wharton, were converted into stock under the provisions of the foregoing resolution and were thereby satisfied, and that the notes held by Thackara, being merged in the judgment recovered by him, were satisfied by the sale of the company's property under execution, and as he offers to pay the notes held by Nelson and Wharton, there should be no decree of foreclosure.

The record does not sustain the assumption of the defendant. On the contrary, it appears that there never was any conversion of notes secured by the mortgage into the stock of the company. It was a condition of the resolution passed by the directors, under which the conversion is alleged to have taken place, that none of the notes were to be converted unless all were converted. The purposes of the resolution were plain, namely, to relieve the company of its embarrassments by providing for the conversion of its debts into stock. In order that this might be done and no advantage taken by one creditor over the others, the conversion of notes into stock was to take effect only on the condition that all the creditors consented, and that the conversion was made within 10 days. This provision in the resolution was necessary to prevent a part of the creditors, after some had converted their notes into stock, from seizing the property of the company and applying it to the payment of their own debts, to the exclusion of other creditors. A large part of the creditors surrendered their notes and took stock in their stead. But this conversion was conditional, and the notes so exchanged were not canceled, because the conditions upon which the conversion was to take place were never complied with. Other holders of notes, among whom was Thackara, refused to convert their notes into stock, and thus the whole scheme fell through. The defendant Reed, who claims under Thackara, insists that all the creditors who surrendered their notes shall lose their debts, and that the notes held by Thackara shall take the entire property of the company. He thus insists upon a result which the resolution of the directors was cautiously framed to prevent. As soon as the 10 days prescribed by this resolution had expired, and it appeared that all the holders of notes secured by the mortgage of the mining company had not converted them into stock, those who had offered to convert were remitted to their rights as creditors of the company. A mortgage creditor, who had refused to convert, could not, by assuming that the property of the company was released from the mortgage, seize it for the satisfaction of his own debt to the exclusion of all the other mortgage creditors. By refusing to convert his notes into stock, he left the notes of the other creditors, and the mortgage which secured them, in full force and effect. The contention of a creditor, who did not offer to convert, that the conditional offer of the other holders to convert is, in effect, a conversion and satisfies their notes, and leaves the property of the company unincumbered and liable to seizure, and applicable exclusively to the satisfaction of his claim, is without support in reason or justice.

It appears from the record that a number of the creditors of the mining company, who had surrendered their notes conditionally, required the complainants Hare and Pugh, who were the mortgagees, to proceed to enforce the mortgage by suit to foreclose, and, in compliance with this demand, the present suit was brought. There is no ground upon which their right to the relief prayed can be denied. There is no support for the contention of Reed that it was the duty of the holders of notes, who had offered to convert them into stock, to rescind, within a reasonable time, the contract of conversion, and that, by delaying to do so for three years, they had lost the right to rescind. The answer to this contention is that there never was any conversion of notes into stock, and no binding contract to convert. The most that can be claimed is that the holders of the notes secured by the mortgage offered to convert them upon the conditions expressed in the resolution. The conditions were never complied with. There was, therefore, no conversion and nothing to rescind. The conditional surrender of the notes secured by the mortgage did not cut off the right to foreclose the mortgage for their satisfaction. Howe v. Lewis, 14 Pick. 329; Davis v. Maynard, 9 Mass. 242; Stover v. Wood, 26 N. J. Eq. 417. The notes which were filed for conversion remained the property of their holders respectively, and the stock the property of the company. It does not appear that any holder of the notes had disposed of stock which he had received conditionally. If there is such a one he will be compelled to account for the stock. Those in whose names the stock still remains will be entitled to their notes and to the security for their payment afforded by the mortgage, and the mining company will be entitled to a retransfer of the stock.

It being clear that the notes held by the parties for whom the present suit to foreclose was brought have not been satisfied, the right of the complainants to maintain the suit is put beyond question. The sale upon the judgment at law recovered by Thackara could not affect that right. It has been held by many courts that a mortgagee cannot, upon a judgment recovered for a debt secured by his mortgage, levy the execution upon the mortgaged property. Atkins v. Sawyer, 1 Pick. 351; Washburn v. Goodwin, 17 Pick. 137; Tice v. Annin, 2 Johns. Ch. 125; Camp v. Coxe, 1 Dev. & B. 52; Waller v. Tate, 4 B. Mon. 529; Powell v. Williams, 14 Ala. 476; Carpenter v. Bowe, 42 Miss. 28; Linville v. Bell, 47 Ind. 547. But whether this be the established rule or not, it requires no authority to show that a sale of the mortgaged premises upon a judgment recovered on a part of the notes secured by the mortgage does not preclude the holder of other notes secured by the same mortgage from proceeding to foreclose it. A sale on such a judgment could only affect the equity of redemption, and would leave the rights of the holder of other notes secured by the mortgage unaffected.

We are of opinion that the circuit court erred in dismissing the bill. Its decree must therefore be reversed, and the cause remanded for such further proceedings in conformity with this opinion as the case may require.


text: Talk:Pugh v. Fairmount Gold Silver Mining Company/Opinion of the Court


text:
Morris v. McMillin

Rowland Cox, for appellant.

W. Bakewell and ''Geo. H. Christy'', for appellees.

WOODS, J.

title: Morris v. McMillin


text: Talk:Morris v. McMillin

title: Talk:Morris v. McMillin