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Mansfield Railway Company v. Swan/Opinion of the Court

In Jackson v. Ashton, 8 Pet. 148, the court itself raised and insisted on the point of jurisdiction in the circuit court; and, in that case, it was expressly ruled that because it did not appear that the circuit court had jurisdiction, this court, on appeal, had no jurisdiction except for the purpose of reversing the decree appealed from on that ground. And in the most recent utterance of this court upon the point in Bors v. Preston, ante, 407, it was said by Mr. Justice HARLAN: 'In cases of which the circuit courts may take cognizance only by reason of the citizenship of the parties, this court, as its decisions indicate, has, except under special circumstance, declined to express any opinion upon the merits, on appeal or writ of error, where the record does not affirmatively show jurisdiction in the court below; this, because the courts of the Union, being courts of limited jurisdiction, the presumption is, in every stage of the cause, that it is without their jurisdiction unless the contrary appears from the record.' The reason of the rule, and the necessity of its application, are stronger and more obvious, when, as in the present case, the failure of the jurisdiction of the circuit court arises, not merely because the record omits the averments necessary to its existence, but because it recites facts which contradict it.

In the Dred Scott Case, 19 How. 393-400, it was decided that a judgment of the circuit court, upon the sufficiency of a plea in abatement, denying its jurisdiction, was open for review upon a writ of error sued out by the party in whose favor the plea had been overruled. And in this view Mr. Justice CURTIS, in his dissenting opinion, concurred; and we adopt from that opinion the following statement of the law on the point: 'It is true,' he said, (19 How. 566,) 'as a general rule, that the court will not allow a party to rely on anything as cause for reversing a judgment which was for his advantage. In this we follow an ancient rule of the common law. But so careful was that law of the preservation of the course of its courts that it made an exception out of that general rule, and allowed a party to assign for error that which was for his advantage, if it were a departure by the court itself from its settled course of procedure. The cases on this subject are collected in Bac. Abr. 'Error,' H, 4. And this court followed this practice in Capron v. Van Noorden, 2 Cranch, 126, where the plaintiff below procured the reversal of a judgment for the defendant on the ground that the plai tiff's allegations of citizenship had not shown jurisdiction. But it is not necessary to determine whether the defendant can be allowed to assign want of jurisdiction as an error in a judgment in his own favor. The true question is not what either of the parties may be allowed to do, but whether this court will affirm or reverse a judgment of the circuit court on the merits, when it appears on the record, by a plea to the jurisdiction, that it is a case to which the judicial power of the United States does not extend. The course of the court is, when no motion is made by either party, on its own motion, to reverse such a judgment for want of jurisdiction, not only in cases where it is shown, negatively, by a plea to the jurisdiction, that jurisdiction does not exist, but even when it does not appear, affirmatively, that it does exist. Pequignot v. Pennsylvania R. Co. 16 How. 104. It acts upon the principle that the judicial power of the United States must not be exerted in a case to which it does not extend, even if both parties desire to have it exerted. Cutler v. Rae, 7 How. 729. I consider, therefore, that when there was a plea to the jurisdiction of the circuit court in a case brought here by a writ of error, the first duty of this court is, sua sponte, if not moved to it by either party, to examine the sufficiency of that plea, and thus to take care that neither the circuit court nor this court shall use the judicial power of the United States in a case to which the constitution and laws of the United States have not extended that power.'

This is precisely appelicable to the present case, for the motion of the plaintiffs below to remand the cause was equivalent to a special plea to the jurisdiction of the court; but the doctrine applies equally in every case where the jurisdiction does not appear from the record. It was so applied in the case of U.S. v. Huckabee, 16 Wall. 414. There the United States had commenced proceedings in the circuit court, under the confiscation acts, to condemn certain real estate, which had been sold owners, the defendants in error, to the confederate government. The United States had, in fact, captured the property during the flagrancy of war, it being an iron foundry and works, used for the manufacture of munitions of war, and had afterwards sold it to Lyon. Huckabee intervened as a claimant, and answered the libel, setting up a claim of title in himself and associates. Lyon also filed an answer, setting up his title, and was made a co-plaintiff with the United States. A decree was made dismissing the libel, and confirming the title of Huckabee. The United States and Lyon prosecuted a writ of error to reverse this judgment. This court decided that the circuit court was without jurisdiction of the subject-matter, as it was not a case contemplated by the confiscation acts, and that it could not be treated as a private suit in equity between the claimants for the determination of their conflicting titles, because the remedy at law was adequate, and also because they were citizens of the same state. It decided, therefore, that the circuit court had no jurisdiction to render any decree in the case upon the merits of the controversy. In stating the conclusion of the court, Mr. Justice CLIFFORD, who delivered its opinion, said, (page 435:) 'Usually, where a court has no jurisdictions of a case, the correct practice is to dismiss the suit, but a different rule necessarily prevails in an appellate court in cases where the subordinate court was without jurisdiction and has given judgment or decree for the plaintiff, or improperly decreed affirmative relief to a claimant. In such a case, the judgment or decree in the court below must be reversed, else the party which prevailed there would have the benefit of such judgment or decree, though rendered by a court which had no authority to hear and determine the matter in controversy.' There, it will be observed, the plaintiffs in error were seeking to everse on the merits an adverse decree, vesting title in the opposing party, in a proceeding instituted by themselves. The court reversed that decree to their advantage, for want of the jurisdiction in the court below, which they had invoked and set in motion.

An analogous principle was acted on in Barney v. Baltimore, 6 Wall. 280, where a decree of the circuit court, dismissing a bill on the merits, was reversed because that court had no jurisdiction, and a decree of dismissal without prejudice directed; and in Thompson v. Railroad Cos. Id. 134, where the question was one purely of procedure, whether the remedy was at law or in equity, although, in that class of cases, where the jurisdiction relates to the subject-matter and is administered by the same court, but in another form of proceeding, it would seem more reasonable that the objection might be waived by the conduct of the parties. See, also, Hurt v. Hollingsworth, 100 U.S. 100. And in Williams v. Nottawa, 104 U.S. 209, it was held to be the duty of the circuit court to execute the provision of the fifth section of the act of March 3, 1875, c. 137, (18 St. pt. 3, p. 470,) by dismissing a suit of its own motion, whenever it appeared that it did not really and substantially involve a dispute or controversy properly within its jurisdiction, and equally so of this court, when, on error or appeal, it appeared that the circuit court had failed to do so, in a proper case, to reverse its judgment or decree for that reason, and to remand the cause with direction to dismiss the suit.

In Grace v. ''American Cent. Ins. Co.'' 109 U.S. 278, S.C.. 3 SUP. CT. REP. 207, it is true that this court passed upon all the questions in the case affecting its merits, although it reversed the judgment because the jurisdiction of the circuit court was not apparent; but it was thought convenient and proper to do so, in that case, because the record itself made it probable that its omission of the statements necessary to show jurisdiction was inadvertent, and might be supplied for a future trial in the same court. In the present case, however, the want of jurisdiction appears affirmatively from the record.

For these reasons the judgment of the circuit court must be reversed, and the cause remanded, with directions to remand the same to the court of common pleas of Fulton county, Ohio.

It remains, however, to dispose of the question of costs. It is clear that the plaintiffs in error, having wrongfully caused the removal of the cause from the state court, ought to pay the costs incurred in the circuit court, and there is no want of power in the court to award a judgment against them to that effect. By section 5 of the act of March 3, 1875, the circuit court is directed, in remanding a cause, to 'make such order as to costs as shall be just;' and the bond given by the removing party under section 3 is a bond to pay 'all costs that may be awarded by the said circuit court, if said court shall hold that such suit was wrongfully or improperly removed thereto.' These provisions were manifestly designed to avoid the application of the general rule, which, in cases where the suit failed for want of jurisdiction, denied the authority of the court to award judgment against the losing party, even for costs. McIver v. Wattles, 9 Wheat. 650; Mayor v. Cooper, 6 Wall. 250.

As to costs in this court, the question is not covered by any statutory provision, and must be settled on other grounds. Ordinarily, by the long established practice and universally recognized rule of the common law, in actions at law, the prevailing party is entitled to recover a judgment for costs, the exception being that where there is no jurisdiction in the court to determine the litigation, the cause must be dismissed for that reason, and, as the court can render no judgment for or against either party, it cannot render a judgment even for costs. Nevertheless there is a judgment or final order in the cause dismissing it for want of jurisdiction. Accordingly, in Winchester v. Jackson, 3 Cranch, 515, costs were allowed where a writ of error was dismissed for want of jurisdiction, the parties not appearing upon the record to be citizens of different states, the plaintiff in error being plaintiff below. But in respect to that case, it is to be observed that the want of jurisdiction disclosed by the record was that of the circuit court, and that there was jurisdiction in this court to consider and determine the question of the jurisdiction of the circuit court, and to reverse its judgment, had it been the other way, for want of jurisdiction. And the judgment for costs in that case is justified on that ground, and seems to have been rendered against the plaintiff in error, because he was the losing party, in the sense of having ineffectually invoked the jurisdiction of the circuit court. And this is just what has taken place in the present suit. Here the plaintiffs in error wrongfully removed the cause to the circuit court. They seek by a writ of error to this court to reverse upon the merits the judgment rendered against them, and bring here the whole record. That discloses the want of jurisdiction in the circuit court to render any judgment; and this court, in the exercise of its jurisdiction, reverses the judgment for that reason alone, its jurisdiction extending no further. It could not dismiss the writ of error for want of jurisdiction in the circuit court, for that would be to give effect to such want of jurisdiction; and this court has jurisdiction of the writ of error to reverse the judgment on that ground. Assessor v. Osbornes, 9 Wall. 567-575.

In Montalet v. Murray, 4 Cranch, 46, the judgment was reversed, because it did not appear from the record that the circuit court had jurisdiction, and with costs, following Winchester v. Jackson, ubi supra; and thereupon, it is stated in the report, that, 'on the last day of the term the court gave the following general directions to the clerk: That in cases of reversal, costs do not go, of course, but in all cases of affirmance they do; and that when a judgment is reversed for want of jurisdiction, it must be without costs.' No formal rule of the court covers the case of a reversal on that ground, although paragraph 3 of rule 24, which provides that 'in cases of reversal of any judgment or decree in this court, costs shall be allowed to the plaintiff in error or appellant, unless otherwise ordered by the court,' leaves room for the exercise of discretion in its application to such cases. The whole subject was very much discussed by Mr. Justice WOODBURY in the case of Burnham v. Rangeley, 2 Wood. & M. 417-424, where he collects a large number of authorities on the subject. In the present case the writ of error is not dismissed for want of jurisdiction in this court; on the contrary, the jurisdiction of the court is exercised in reversing the judgment for want of jurisdiction in the circuit court; and although, in a formal and nominal sense, the plaintiffs in error prevail in obtaining a reversal of a judgment against them, the cause of that reversal is their own fault in invoking a jurisdiction to which they had no right to resort, and its effect is to defeat the entire proceeding which they originated and have prosecuted. In a true and proper sense the plaintiffs in error are the losing and not the prevailing party, and, this court having jurisdiction, upon their writ of error, so to determine, and in that determination being compelled to reverse the judgment, of which, on other grounds, they complain, although denying their right to be heard for that purpose, has jurisdiction, also, in order to give effect to its judgment upon the whole case against them, to do what justice and right seem to require, by awarding judgment against them for the costs that have accrued in this court.

The judgment of the circuit court is accordingly reversed, with costs again t the plaintiffs in error, and the cause is remanded to the circuit court, with directions to render a judgment against them for costs in that court, and to remand the cause to the court of common pleas of Fulton county, Ohio; and it is so ordered.


text: Talk:Mansfield Railway Company v. Swan/Opinion of the Court

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text:
Hornbuckle v. Stafford

The answer of the appellants contained denials of all the material allegations of the complaint, and specially averred that in the year 1869 a company named the Hellgate & Avalanche Ditch Company was formed by Samuel Clem and four associates to construct a ditch to conduct the waters of Avalanche creek to the foot-hills of Cave gulch; that appellee became a member of the company and contributed to its property the White and Tower ditch and the water connected therewith, and the other associates contributed certain mining ground, and that each member of the company owned one-sixth of the common property; that the company constructed its proposed ditch, and afterwards purchased the Basey ditch, etc., and that in the fall of the year 1870 all the waters of the Avalanche creek were turned into the Hellgate & Avalanche ditch, including all the water to which the appellee had any title, and thenceforward the water had always been used by the company as the joint property of its members, and that the appellee, until a short time before the beginning of this suit, never set up any claim to the exclusive use of any part thereof; that on March 30, 1878, the appellee conveyed, by his deed of that date, to the appellants all his interest in the Hellgate & Avalanche Ditch Company, and since that time they have been the exclusive owners of the Hellgate & Avalanche ditch and all the water-rights connected therewith, having previously purchased the interests of the other owners. The answer denied that on July 11 1871, a decree was rendered as averred in the complaint, but admitted that a decree was rendered in a cause wherein John Gallagher and the appellants were plaintiffs, and Basey and the appellee and others were defendants, adjudging to the appellee 35 inches of the water of Avalanche creek, and averred that the decree was so entered, awarding the water aforesaid to the appellee, by the consent of the members of said company, and because the title to said water-right stood in the name of the appellee, and for no other reason, but that the water was awarded to the appellee in trust for the benefit of the owners of the Hellgate & Avalanche Ditch Company.

Issue was taken on the answer by replication, and the issues of fact were tried by a jury, which returned a general verdict for the appellee, and also returned certain special findings, as follows: They found that the 35 inches of water, decreed to the appellee by the decree of July 11, 1879, was held by the appellee for himself, and as his own property, and not in trust for the members of the Hellgate & Avalanche Ditch Company, and that he had never parted with his right to said water to the company, either before or after the decree, and that after the decree the water did not belong to the Hellgate & Avalanche Ditch Company. Upon the general and special verdict of the jury, as well as upon the pleadings, proceedings, and evidence in the cause, the court decreed that the appellee was entitled to the possession and enjoyment of 35 inches of the water of Avalanche creek to flow in at the head of the White and Tower ditch, or 125 inches to flow in at the head of the Basey ditch, and that he hold and enjoy the same, and that the appellants be forever enjoined from interfering with the unobstructed flow of said water to the ditches of the appellee. From this decree Hornbuckle and Marshall appealed to the supreme court of the territory of Montana, by which the decree was affirmed. The same appellants have brought, by the present appeal, the decree of the supreme court of Montana to this court for review.

Luther R. Pike, for plaintiff in error and appellant.

No counsel for defendant in error and appellee.

WOODS, J.

title: Hornbuckle v. Stafford


text: Talk:Hornbuckle v. Stafford

title: Talk:Hornbuckle v. Stafford


text:
Hornbuckle v. Stafford/Opinion of the Court

The case, in its nature and substance, belongs to the equity side of the court. Basey v. Gallagher, 20 Wall. 670. The testimony is all in the record. The points contested between the parties were whether, under the decree made July 11, 1871, by the district court of the Third judicial district of Montana, and afterwards affirmed by the supreme court of Montana and this court, the appellee was entitled, in his own right, to 35 inches of the water of Avalanche creek, or whether he held such right in trust for all the associates of the Hellgate & Avalanche Ditch Company, and whether, if the appellee had a several and individual right in the water, the deed made by him to the appellants on March 30, 1878, conveyed to them such individual right. The appellee asserted that he held under the decree individually and in his own right the 35 inches of water, and that he did not convey such right to the appellants by the deed of March 30, 1878. The decree in the case of Gallagher and the present appellants v. Basey and the present appellee and another, rendered June 11, 1871, is, upon its face, a decree in favor of the appellee individually and in his own right, declaring him to be entitled to the 35 inches of water in Avalanche creek. The Hellgate & Avalanche company is not mentioned in the decree, nor is there any intimation that the appellee was to hold the right to that the deed of the appellee to or company of persons. It is also clear that he deed of the appellee to the appellants of March 30, 1878, did not convey to them the right to the 35 inches of water awarded to the appellee by the decree of July 11, 1871. It was a quitclaim deed for his undivided four-fifteenths interest in the property known as the Hellgate & Avalanche D tch Company, and contained this reservation: 'This deed shall not be so construed as to affect individual rights to waters in Avalanche gulch.' The decree of the supreme court of Montana territory in the present case must therefore be affirmed, unless the appellants can make good some of their assignments of error.

The first assignment of error relates to the refusal by the district court to admit in evidence the complaint and answer in the case of Basey v. Gallagher, offered by the appellants, the court having already admitted the decree rendered in that case. The purpose of the evidence offered was to explain the decree, and to show by the complaint and answer that the right to 35 inches of water awarded to the appellee by the decree was not his individual right, but was decreed to him in trust for the Hellgate & Avalanche Ditch Company. The decree having been put in evidence, it was clearly erroneous to exclude the pleadings upon which this decree was based. Even parol evidence is admissible when necessary to show what was tried in a suit, the record of which is offered in a subsequent action between the same parties. Campbell v. Rankin, 99 U.S. 261. But in order to sustain the exception to the exclusion of the pleadings in the case of Gallagher v. Basey, it was necessary that the exception should show what the excluded testimony was, in order that it might appear whether the evidence was material or not. Dunlop v. Munroe, 7 Cranch, 242, 270; Reed v. Gardner, 17 Wall. 409; Morville v. American Tract Society, 123 Mass. 129. This was done by the appellants. A copy of the complaint and answer in the case of Gallagher v. Basey and others is set out in the bill of exceptions. An inspection of the excluded testimony shows that the complaint and answer do not in any degree tend to support the contention of appellants, to-wit, that the 35 inches of water awarded appellee by the decree was awarded to him in trust for the Hellgate & Avalanche Ditch Company. The company is not mentioned in the pleadings, and there is no averment that the appellee held the water-right claimed by him for any one but himself. While, therefore, the appellants were entitled to put the complaint and answer in evidence as a part of the record, it is clear that the exclusion of the pleadings in no degree prejudiced their case. The decree will not be reversed for such an error. Gregg v. Moss, 14 Wall. 564.

The appellants next contend that the decree should be reversed because the court excluded evidence offered by them to show that the consideration on which the appellee became a member of the Hellgate & Avalanche Ditch Company was the conveyance of his water-right in Avalanche creek to the company. The evidence was properly excluded, because this issue had been passed upon in the case of Gallagher and others v. Basey and others, between the same parties, and decided, as appears by the decree of the court, against the contention of appellants. That decree remaining in full force, was not open to contest in a subsequent suit between the same parties. The testimony was therefore properly excluded.

The next and last ground alleged for the reversal of the decree is that the court erred in refusing to permit Hornbuckle, one of the appellants, to testify that when the appellee executed the deed of March 30, 1878, to the appellants, he made no claim or assertion of any individual right to any of the water of Avalanche creek. The evidence excluded was clearly inadmissible. The deed expressly reserved the individual rights in the water. The reservation could not be affected by the evidence offered. When a reservation is made in a deed, it is not necessary, in order to give it effect, that the grantor should, when he executes the deed, assert verbally his right to the property excepted from the conveyance. Evidence that he made no such assertion is clearly incompetent and inadmissible.

We are of the opinion, therefore, that neither of the grounds upon which appellants ask the reversal of the decree is well founded. Other exceptions were taken during the course of the jury trial, but no assignments of error are founded upon them.

Upon an examination of the whole record, we are convinced that the decree of the district court, which was affirmed by the supreme court of the territory of Montana, was according to 'the right of the cause and matter of law.' It is plain the appellants had no case. Decree affirmed.


text: Talk:Hornbuckle v. Stafford/Opinion of the Court


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Gaines v. Miller

The prayer of the bill was that the court would decree that the estate of Hammond was indebted to appellant in the sum of money demand, namely, $6,841.80, with the interest thereon, and that she was equitably entitled to recover the same in this suit. The defendant filed a demurrer to the bill on the following, among other grounds: (1) Because the case stated in the bill is one of which a court of equity has no jurisdiction; and (2) because the bill shows that a suit had been brought by those recognized by the court as the lawful representatives of Daniel Clark, and that more than 60 years ago judgment had been rendered therein against Hammond for the same money for which this suit was brought, and that such judgment had never been vacated or reversed. The circuit court sustained the demurrer and dismissed the bill, and the complainant appealed.

Britton A. Hill, for appellant.

Henry H. Denison, for appellee.

WOODS, J.

title: Gaines v. Miller


text: Talk:Gaines v. Miller

title: Talk:Gaines v. Miller


text:
Gaines v. Miller/Opinion of the Court

The demurrer was properly sustained on both grounds. The theory of the bill, as appears from its averments and as it is stated by counsel for appellant, is that appellant is the proper party to sue, in her own name, for the proceeds of the lands of her father's estate, sold by Hammond in 1819 under power of attorney from Relf and Chew, and that by bringing this suit she affirms and ratifies the sale. The appellant having ratified the sale, the only obligation which can rest upon Hammond's administrator is to pay over to the appellant the money received by Hammond as the consideration of the sale. It is, therefore, simply a case of money had and received by him for the use of appellant, and a declaration in assumpsit on the common counts would have fully stated the appellant's cause of action. Whenever one person has in his hands money equitably belonging to another, that other person may recover it by assumpsit for money had and received. Pickard v. Bankes, 13 East, 20; Spratt v. Hobhouse, 4 Bing. 178; Israel v. Douglas, 1 H. B1. 239; beardsley v. Root, 11 Johns. 464; Hall v. Marston, 17 Mass. 575; Claflin v. Godfrey, 21 Pick. 1. The remedy at law is adequate and complete.

There is no averment in the bill of complaint of any ground of equity jurisdiction. No trust is alleged, no discovery is sought. The appellant has no lien on the property of Hammond's estate, and avers none. The only semblance of a fraud alleged is that Hammond fraudulently absconded, and secretly left the state of Missouri, concealing himself by traveling in places unknown to the appellant. But this averment does not relate to the cause of action. It is only made as an excuse for not bringing the suit at an earlier time, and to take the case out of the bar of the statute of limitations. The law of Missouri (Rev. St. § 3244) provides that if any person, by absconding or concealing himself, prevent the commencement of an action, such action may be commenced within the time limited by the statute, after the commencement of such action shall have ceased to be so prevented. The excuse made by appellant for not sooner bringing her suit was, therefore, available in an action at law. Having found assets of Hammond's estate in Missouri, and an administrator having been appointed, an action at law was the plain and adequate method for the recovery of the appellant's rights. The circuit court, sitting as a court of equity, had, therefore, no jurisdiction of the case. Hipp v. Babin, 19 How. 271.

The second ground of demurrer is also well taken. The appellant, by ratifying the sale made by Relf and Chew, through their agent, Hammond, ratified the acts of Relf and Chew in respect to the purchase money received by Hammond. If Hammond, as their agent, had paid over to them the money received from the sales made by him, the appellant could not, having ratified the sale, repudiate the payment. If a principal ratifies that which favors him, he ratifies the whole. Skinner v. Dayton, 19 Johns, 554; Odiorne v. Maxcy, 13 Mass. 178; Menkens v. Watson, 27 Mo. 163; Attwood v. Small, 6 Clark & F. 232. By ratifying the sale, the appellant places herself in the position of Relf and Chew, and Hammond has the same rights against her as he had against them. Relf and Chew having sued Hammond and recovered judgment against him for the money received by him, the demand for the money was merged in the judgment. They could not bring suit on the claim for the money. Biddleson v. Whitel, 1 W. Bl. 507; Wayman v. Cochrane, 35 Ill. 152. Neither could the appellant. Their only remedy was to enforce the judgment or to bring another suit upon it. If the judgment was paid, Hammond was discharged from any demand either by Relf and Chew or the appellant. There is a conclusive presumption of law that the judgment has been paid. By an act of the territorial legislature passed January 20, 1816, the common law of England was adopted as the law of the territory of Missouri. By the common law, the lapse of 20 years, without explanatory circumstances, affords a presumption of law that the debt is paid, even though it be due by specialty. Oswald v. Legh, 1 Term R. 270; Lesley v. Nones, 7 Serg. & R. 410; Jackson v. Wood, 12 Johns. 242; Best, Pres. § 137. And, by the Revised Statutes of Missouri of 1835, (page 396,) it was provided as follows: 'Every judgment and decree of any court hereafter rendered or made, shall be presumed to be paid and satisfied after the expiration of twenty years from the time of giving such judgment or decree, and every judgment and decree rendered or made at the time this act shall take effect, shall be presumed to be paid and satisfied after the expiration of twenty years from the time this act shall take effect.' This provision has been substantially continued in force to the present time, (1 Rev. St. Mo. § 3251,) and forms a part of the settled jurisprudence of the state. In the case of Clemens v. Wilkinson, 10 Mo. 98, it was held by the supreme court that, as to judgments rendered prior to the act of 1835, the presumption of payment after 20 years, raised by the common law, continues unaffected by that act, which, as to such judgments, is only cumulative. This presumption is a rule of evidence and not a limitation, and is not subject to the exceptions and incidents of an act of limitation. Cape Girardeau v. Harbison, 58 Mo. 90; Smith's Ex'r v. Benton, 15 Mo. 371. If, therefore, 20 years after its date suit had been brought against Hammond, in his life-time, on the judgment recovered against him by Relf and Chew, he could have availed himself of the conclusive presumption which that law raises, that the judgment had been paid. The presumption is no weaker when the suit is brought against the administrator of his estate 61 years after the date of the judgment. The case, therefore, as stated by the bill, is this: Appellant seeks to recover on a claim for money had and received, which had been reduced to judgment more than 60 years, and which the law conclusively presumed had been paid more than 40 years before her suit was brought.

We are of opinion, therefore, that the decree of the circuit court sustaining the demurrer to the bill was right, and it must be affirmed.

title: Gaines v. Miller/Opinion of the Court


text: Talk:Gaines v. Miller/Opinion of the Court


text:
Claiborne Company v. Brooks

Jesse L. Rogers, for plaintiff in error.

James G. Rose, for defendant in error.

This was an action of debt, brought by the appellee, (the plaintiff below,) as bankrupt assignee of Howard, Cole & Co., against the county of Claiborne, Tennessee, on its bond or obligation, dated the seventh day of April, 1868, payable to one V. H. Sturm, or order, for $5,000, with interest, and indorsed by Sturm to Howard, Cole & Co. The following is a copy of the bond, together with the indorsement thereon, to-wit:

'COUNTY COURT-APRIL TERM, 1868.

'The State of Tennessee, County of Claiborne: On or before     the first day of January, 1870, the county of Claiborne is      hereby bound and promises to pay to V. H. Sturm, or order,      the sum of five thousand dollars, bearing inte est from this      date at the rate of six per centum per annum until paid. And     this bond is redeemable by the county at any earlier date if      they choose to do so.

'By order of the county court of said county, at its     quarterly term, on the first Monday of April, 1868, a      majority of the acting justices of the peace for said county      having voted the same, and ordered the bond of the county to      be issued therefor.

'Witness, Thomas L. Davis, chairman of the county court of     said county, and the seal of the court, this seventh day of      April, 1868.

'[Seal.]

THOS. L. DAVIS, Chairman.

'Attest: DAVID CARDWELL, Clerk.'

Indorsed: 'Pay to Howard, Cole & Co., waiving demand, notice,     and protest. VICTOR H. STURM.'

The case was commenced in the state court and was removed into the circuit court of the United States, and came up for trial on the pleas of non est factum, nil debet, and payment, other pleas having been overruled on demurrer. A verdict being rendered in favor of the plaintiff under the charge of the court, and exceptions being taken to the charge, the case is brought here by writ of error.

The bill of exceptions states that on the trial the plaintiff introduced proof tending to show that the county of Claiborne, by its county court, appointed commissioners, who contracted with Sturm for the erection of a court-house in Tazewell, the county seat; that by the original contract he was to receive $8,000; and that the contract was subsequently modified so as to enlarge the building, without fixing specifically the additional price to be paid. The plaintiff further exhibited proof of the following orders made by the county court and entered of record, namely, on the sixth of April, 1868, the following: 'Ordered, by the court that V. H. Sturm be allowed the sum of ten thousand dollars, in part pay for the court-house.' And on the fourth day of January, 1869, the following: 'It was this day ordered by the court that Benjamin Ausmus, revenue collector of Claiborne county, be permitted to examine and investigate the payment or transfer of certain county bonds issued in favor of V. H. Sturm, and whether or not said bonds have been paid, transferred, or assigned to any party for a full and valid consideration before the seventh July, 1868; and if so that the said Ausmus, as revenue collector, be allowed to pay over or deposit what funds he may have on hand, collected for that purpose, to the person or persons holding the legal and lawful possession of said bonds. But should the bonds have been enjoined before or since the above date, then the money so collected and in the hands of said revenue collector will be deposited with the clerk of the chancery court at Knoxville, taking his receipt therefor.' There was also evidence tending to show that the bond sued on was made and delivered to Sturm by the chairman of the county court, together with another similar bond, which has been paid. The defendant introduced evidence tending to show that the value of the additional work on court-house was $3,000; that between $10,000 and $11,000 had been paid to the contractor, V. H. Sturm, and his order, outside of the amount called for in the bond sued on.

The following sections of the Code of Tennessee show the powers of counties in that state in relation to the erection of public buildings, and the making of contracts:

Sec. 402. 'Every county is a corporation, and the justices in the county court assembled are the representatives of the county, and authorized to act for it.'

Sec. 403. 'Suits may be maintained against a county for any just claim as against other corporations.'

Sec. 404. 'Each county may acquire and hold property for county purposes, and make all contracts necessary or expedient for the management, control, and improvement thereof, and for the better exercise of its civil and political power; may do such other acts, and exercise such other powers as may be allowed by law.'

Sec. 408. 'It is the duty of the county court to erect a c urt-house, jail, and other necessary county buildings.'

Sec. 410. Such buildings 'shall be erected within the limits of the county town.'

Sec. 411. 'The county buildings are to be erected, and kept in order and repair at the expense of the county, under the direction of the county court, and it may levy a special tax for that purpose.'

Sec. 414. [Confers power on the justices of the county court, when deemed for the public interest, to change the site of the county jail or court-house, and to order a sale of the site or materials;] 'and they may also order that a more eligible, convenient, healthy, or secure site be purchased, and cause to be erected thereon a new jail or court-house, better suited to the convenience of said town, and secure the safe custody, health, and comfort of the prisoners.'

Sec. 415. 'The said justices shall appoint not less than three, nor more than five, commissioners, a majority of whom shall be competent to make such sale and purchase; to contract for and superintend the erection of the new jail and court-house; and to carry into execution all such orders as said justices may deem necessary and proper in the premises.' The defendant's attorney requested the court to instruct the jury-'First, that in the absence of express power conferred by statute, the county of Claiborne, as a corporation, had no power to make and issue a negotiable interest-bearing bond, such as the one sued on, there being no implied power to issue such a bond; second, there being no authority for the issuance of such bond, the chairman of the county court had no right to make or issue it, and the payment of a similar bond by the county would not operate as a ratification of this bond, or make it valid.'

Among other things not excepted to, the judge instructed the jury as follows, to-wit: 'First. That the defendant, Claiborne county, a corporation under the laws of Tennessee, through the county court, was authorized to erect a court-house; that the power to erect implied the right to contract for the same, and if the court had the right to make a contract for the erection of the court-house, he instructed them that the court had the incidental or implied power to execute a note, bond, or other negotiable security in payment of such contract, and might legally issue such an instrument as the bond sued on. That a corporation with power to make a contract, like an individual, might make and issue commercial paper as evidence of or security for the contract.' 'The court further instructed the jury that they would look to the evidence and ascertain whether the county court ordered the chairman to make the bond sued on; if it did not so order, the chairman had no power or authority to make it; but if, after its execution, the county court made an order on the tax collector to hunt up the the holders of this and another bond like this, and pay it, that this would be a ratification of the action of the chairman, and would validate the bond sued on. If the jury should so find, they would then find in favor of the plaintiff the amount of the bond and interest thereon at six per cent. per annum from its date.' To these portions of the charge the defendant excepted, and assigns the same for error. The jury returned a verdict of $8,741 for the plaintiff, being for principal and interest of the bond.

Judgment was entered for plaintiff accordingly, and the defendant sued out this writ of error.

Mr. Jesse L. Rogers for plaintiff in error.

[Argument of Counsel on Page 405 intentionally omitted]

BRADLEY, J.

title: Claiborne Company v. Brooks


text: Talk:Claiborne Company v. Brooks

title: Talk:Claiborne Company v. Brooks


text:
Claiborne Company v. Brooks/Opinion of the Court

From the instructions requested by the defendant and those given by the court (although there is a want of explicitness in the bill of exceptions) we gather that the real controversy was, whether the defendant could set up against the assigness of the bond a defense (such as payment) which would have been good against Sturm, the original holder, as to whom evidence was given tending to show that he had received from the county all, or nearly all, that he was entitled to, independently of the bond sued on. Unless this was the real controversy, we do not see the relevancy of the charge. For if the right of the defendan to set up the defense, which it had against the bond in the hands of Sturm, was not denied or disputed, we do not see of what importance portance the particular form of the instrument would have been. But if the form was relied on as precluding any such defense, then the charge was clearly material, and had a decisive bearing upon the case. The doctrine of the charge is that the power of a county to erect a court-house involves and implies the power to contract for its erection; and the power to contract involves and implies the power to execute notes, bonds, and other commercial paper as evidence or security for the contract; or, to state it according to its legitimate conclusion and result, it is this, that whenever a county has power to contract for the performance of any work or for any other thing, it has incidental power to issue commercial paper in payment thereof; that the one power implies the other. It being clear that the county of Claiborne had power to erect a court-house, the court below held that this involved an implied power to contract out the work, and to issue negotiable bonds of a commercial character in payment thereof. We cannot concur in this view. The erection of court-houses, jails, and bridges is among the ordinary political or administrative duties of all counties; and, from the doctrine of the charge, it would necessarily follow that all counties have the incidental power, without any express legislative authority, to issue bonds, notes, and other commercial paper in payment of county debts and charges; and if they have this power, then such obligations, issued by the county authorities and passing into the hands of bona fide holders, would preclude the county from showing that they were issued improperly, or without consideration, or for a debt already paid; and it would then be in the power of such authorities to utter any amount of such paper, and to fasten irretrievable burdens upon the county without any benefit received. Our opinion is that mere political bodies, constituted as counties are, for the purpose of local police and administration, and having the power of levying taxes to defray all public charges created, whether they are or are not formally invested with corporate capacity, have no power or authority to make and utter commercial paper of any kind, unless such power is expressly conferred upon them by law, or clearly implied from some other power expressly given, which cannot be fairly exercised without it. Our views on this subject were distinctly expressed in the case of Police Jury v. Britton, 15 Wall. 566, where, speaking of the power of local political bodies to issue commercial paper, we said: 'It seems to us to be a power quite distinct from that of incurring indebtedness for improvements actually authorized and undertaken, the justness and validity of which may always be inquired into. It is a power which ought not to be implied from the mere authority to make such improvements. It is one thing for county or parish trustees to have the power to incur obligations for work actually done in behalf of the county or parish, and to give proper vouchers therefor, and a totally different thing to have the power of issuing unimpeachable paper obligations which may be multiplied to an indefinite extent. If it be once conceded that the trustees or other local representatives of townships, counties, and parishes have the implied power to issue coupon bonds, payable at a future day, which may be valid and binding obligations in the hands of innocent purchasers, there will be no end to the frauds that will be perpetrated. We do not mean to be understood that it requires in all cases express authority for such bodies to issue negotiable paper. The power has frequently been implied from other express powers granted. Thus, it has been held that the power to borrow money implies the power to issue the ordinary securities for its repayment, whether in the form of notes or bonds payable in future.' Pages 571, 572. In that case he suit was brought on coupons of bonds given to take up certain levee warrants issued by the police jury of the parish; and the court were unanimously of opinion that the police jury had no power to issue such bonds.

In the subsequent case of Mayor of Nashville v. Ray, 19 Wall. 468, the circumstances were somewhat different. That was the case of an incorporated city, and the suit was brought on treasury warrants drawn by the mayor and recorder on the city treasurer, payable to bearer, and originally delivered to various persons for work done for the city; they were afterwards received by the tax collector in payment of taxes, and then sold for such price as they would bring to raise money for city purposes; the plaintiff had purchased the warrants in suit, and evidence was given to show that he had notice that they had been paid in and received for taxes; but the court below held that the corporation had the right to issue promissory notes and other securities; and that if it was the usage to reissue them in this way, they would, when sold and reissued, be obligatory on the city. All the justices of this court held that, when originally issues, they were valid as vouchers and evidences of actual indebtedness, and the three dissenting justices held with the court below that they were valid obligations when reissued; but a majority of the court concurred in reversing the judgment, and four of the justices were of opinion that, as the city had no express power to borrow money or to issue commercial paper, and, in their view, no general power by which it was necessarily implied, the warrants when once paid in for taxes were nothing but redeemed vouchers, and functus officio, and ceased to have any validity, and that the city officers had no authority to reissue them; that it was an unauthorized use of the city's credit, and an attempt to borrow money and to issue commercial paper without any power or authority to do so; and that the plaintiff's claim of being a bona fide holder could not avail him. In discussing the subject the following remarks were made, which were quoted with approval in the subsequent case of Wall v. County of Monroe, 103 U.S. 78; 'Vouchers for money due, certificates of indebtedness for services rendered, or for property furnished for the use of the city, orders or drafts drawn by one city officer upon another, or any other device of the kind, used for liquidating dating the amounts legitimately due to public creditors, are, of course, necessary instruments for carrying on the machinery of municipal administration, and for anticipating the collection of taxes. But to invest such documents with the character and incidents of commercial paper, so as to render them in the hands of bona fide holders absolute obligations to pay, however irregular or fraudulently issued, is an abuse of their true character and purpose.' And again: 'Every holder of a city order or certificate knows that, to be valid and genuine at all, it must have been issued as a voucher for city indebtedness. It could not be lawfully issued for any other pupose. He must take it, therefore, subject to the risk that it has been lawfully and properly issued. His claim to be a bona fide holder will always be subject to this qualification. The face of the paper itself is notice to him that its validity depends upon the regularity of its issue. The officers of the city have no authority to issue it for any illegal or improper purpose, and their acts cannot create an estoppel against the city itself, its tax-payers, or people. Persons receiving it from them know whether it is issued, and whether they receive it for a proper purpose and a proper consideration. Of course they are affected by the absence of these essential ingredients; and all subsequent holders take cum onere, and are affected by the same defect.'

The counsel for the defendant in error relies strongly on the cases of Lynde v. County of Winnebago, 16 Wall. 6, deci ed by this court, and State v. Anderson Co. 8 Baxt. 249, decided by the supreme court of Tennessee, as well as upon various decisions of other state courts, particularly Williamsport v. Com. 84 Pa. St. 487; Mills v. Gleason, 11 Wis. 470; and Bank of Chillicothe v. Chillicothe, 7 Ohio, pt. 2, p. 31.

Conceding that views different from those which we have expressed are entertained by some of the state courts, and that they may be controlling in the states where they are thus entertained, we are more especially concerned to know what is held to be the law in Tennessee, as well as what may have been held in the decisions of this court in former cases.

In the case of Lynde v. County of Winnebago, the county had express legislative authority to borrow money for the erection of public buildings, to be determined by the people of the county at any regular election or special election called for the purpose. The question in the case was not as to the existence of the power, but as to the effect of the evidence on the question whether the conditions for its exercise had been complied with. The court held that the evidence was sufficient, and sustained the bonds. It was not pretended that the county would have had power to issue them if such power had not been conferred by the legislature, either expressly or by necessary implication, from the express power to 'borrow money.'

In the case of State v. Anderson Co. the authority to issue bonds was still more explicit. An act of the legislature of Tennessee, passed in 1852, (chapter 191,) had authorized certain counties to subscribe stock in any chartered railroad located through said counties, in any amount determined upon, in the manner prescribed by law, and to issue bonds for the amount subscribed. Another act, passed in 1854, applied these provisions expressly to Anderson county, and the bonds in question in that case were issued in pursuance of this act, although the preliminary proceedings had been taken under a different act, which authorized a subscription to the stock, but did not expressly authorize the issue of bonds therefor. The supreme court of Tennessee, it is true, expressed an opinion that authority to issue the bonds was implied from the power given to subscribe for stock, without the aid of the act of 1854, stating, as a general rule, 'that a county, like another corporation, having right to create a debt, has also the incidental right to issue the commercial evidence of it, in such forms as may be satisfactory to the parties.' But the statement of this general proposition may be regarded as only a dictum in the case, since the judgment was fully supported by the express provisions of the act of 1852, c. 191, if not by the power given to subscribe for stock in a railroad corporation. We are not referred to any other decision of the supreme court of Tennessee which comes any nearer to a determination of the question.

It is undoubtedly a question of local policy with each state what shall be the extent and character of the powers which its various political and municipal organizations shall possess; and the settled decisions of its highest courts on this subject will be regarded as authorative by the courts of the United States; for it is a question that relates to the internal constitution of the body politic of the state. But as all, or nearly all, the states of the Union are subdivided into political districts similar to those of the country from which our laws and institutions are in great part derived, having the same general purposes and powers of local government and administration, we feel authorized, in the absence of local state statutes or decisions to the contrary, to interpret their general powers in accordance with the analogy furnished by their common prototypes, varied and modified, of course, by the changed conditions and circumstances which arise from our peculiar form of government, our social state, and physi al surroundings. With regard to the political divisions of counties and townships, we have heretofore, in the cases referred to, expressed our views as to their power of issuing paper obligations of a commercial character. We consider such a power as entirely foreign to the purposes of their creation, and as never to be conceded except by express legislation, or by necessary, or at least, very strong, implication from such legislation. The reasons for these views were fully expressed in those cases, and need not be repeated. We adhere to them without modification. But when a case comes before us from a state in which a different policy prevails, clearly shown by the local constitution or statutes, or by the settled decisions of the state courts, we are bound to decide it accordingly, We are not satisfied that this is such a case.

The sections of the Code of Tennessee already referred to, so far as we can perceive, confer only the ordinary powers generally given to county jurisdictions. No extraordinary powers are given; and no mode of raising funds for the erection or repair of public buildings is pointed out, except the levy of a special tax.

In the case of Wells v. Sup'rs, 102 U.S. 631, we held that the power to issue county bonds did not arise from a power to subscribe for stock in a railroad company, where authority was at the same time given to assess and collect a tax for the payment of the capital stock, and no other authority to raise the requisite funds was given.

Under the Code of Tennessee contracts may of course be made for the erection or repair of public buildings, and the power to issue vouchers for payment is necessarily implied, but no power is given to issue bonds or other commercial paper having the privileges and exemptions accorded to that class of commercial securities. No such power is expressly given, and in our judgment no such power is necessarily implied. The document sued on in this case may very well have served the purpose of a voucher to show a stated account as between Sturm and the county, and may be of such form as to be assignable by indorsement, but it must always be liable, in whosesoever hands it may come, to be open for examination as to its validity, honesty, and correctness.

The judgment of the circuit court must be reversed, and the cause remanded, with directions to award a new trial, and to take such further proceedings as may be in accordance with this opinion.


text: Talk:Claiborne Company v. Brooks/Opinion of the Court


text:
Page:Copyright, Its History And Its Law (1912).djvu/255

 The copyright of works of the fine arts and cognate works is specifically provided for in the code of 1909 by including as subject-matter of copyright (sec. 5) the following divisions: "(f) Maps; (g) Works of art; models or designs for works of art; (h) Reproductions of a work of art; (i) Drawings or plastic works of a scientific or technical character; (j) Photographs; (k) Prints and pictorial illustrations." It is not intended to include under subsection (k) labels or prints of advertising or commercial character which may be registered as trade-marks under the Trade-Mark law in the Patent Office. The proprietor of a work of art is given in addition to the general rights (sec. i, a) the specific rights (sec. i, b) " to complete, execute, and finish it if it be a model or design for a work of art."

The new Coypright Office Rules and Regulations, promulgated 1910, define these classifications in the followmg language:

"11. (f) Maps. — This term includes all cartographical works, such as terrestrial maps, plats, marine charts, star maps, but not diagrams, astrological charts, landscapes, or drawings of imaginary regions which do not have a real existence.

"12. (g) Works of art. — This term includes all works belonging fairly to the so-called fine arts. (Paintings, drawings, and sculpture.)

"Productions of the industrial arts utilitarian in purpose and character are not subject to copyright registration, even if artistically made or ornamented.

"No copyright exists in toys, games, dolls, advertising novelties, instruments or tools of any kind, glassware, embroideries, garments, laces, woven fabrics, or any similar articles.

"13. (h) Reproductions of works of art. — This term refers to such reproductions (engravings, woodcuts, etchings, casts, etc.) as contain in themselves an


text:
Slidell v. Grandjean

[Syllabus from pages 412-413 intentionally omitted]

[Statement of Case on pages 413-414 intentionally omitted]

James L. Bradford, Willis Drummond, and R. H. Bradford, for appellees.

''Sol. Gen. Phillips, for Grandjean and as amicus curiae.''

Mr. William Grant (Mr. J. D. Rouse was with him) for appellee Richardson, and defendant Tschirn.

The case was argued on the 2d January, and a decision announced on the 3d March, 1884. On the 24th March, 1884,

Mr. JUSTICE FIELD announced the following order:

title: Slidell v. Grandjean


text: Talk:Slidell v. Grandjean

title: Talk:Slidell v. Grandjean