1 F. Cas. 370 | U.S. Cir. Ct. | 1879
Prom the evidence it appears that the plaintiff went on the premises on September 1, 1852, as a married settler, under section 5 of the donation act, and resided upon and cultivated the same for four years, as required by said act; and that his wife, Sarah, died thereon in 1853; that on September 27, 1867, the officers of the proper land office issued a patent certificate to said plaintiff and his wife for said premises, — the north half to the husband and the south one to the wife, —and that on June 14, 1877, a patent for the premises issued in pursuance of said certificate; that on November 17, 1S58, said plaintiff made his promissory note to the treasurer of Lane county for the sum of eight hundred dollars, payable three years from date, with interest at the rate of ten per centum per annum, and to secure the payment of the same, together with his then wife Susannah, on the date last aforesaid, executed and delivered to said treasurer a mortgage of said premises; that on October 8, 1S63, a suit was commenced against said plaintiff and wife in the circuit court for said county to enforce the lien of said mortgage by filing a complaint therein, in the name of the “board of county commissioners of Lane county,” and on the same day a summons likewise entitled was placed in the hands of the proper officer who, on October 16, 1863, returned thereon that he had duly served the same on said plaintiff on October 9; that on October 30, 1863, for want of an answer, a decree was given in said court entitled “Lane County, Plaintiff, v. Robert Alexander, Defendant,”
As to the remaining quarter section, the husband’s share or the donation, the case will now be considered upon the plaintiff’s objections to the validity of the decree. By the laws of this state each county therein “is a body politic and corporate,” for the purpose,, among other things, of purchasing and owning property, real and personal, for the use thereof, and of making “all necessary contracts,” and doing “all other necessary acts in relation to the property and concerns of the county.” (Gen. Laws Or. p. 535;) and the county court, as the representative of the county, has the power to provide, among other things, for the erection and furnishing of all necessary public buildings, bridges, the maintenance and employment of the poor, the management of the county property, funds, and business, and to eojnpromise for any debt or damages due the county, (Civil Code Or. § 870.) The county sues, and is sued, in its name under the direction of the county court, (Id. § 871,) and may maintain an action upon a cause of action accruing to it upon a contract made with it, (Id. § 346.) From this summary of the I pc wers of a county, it is apparent that it must have the authority in many instances to take notes and mortgages, and enforce them by the usual and proper legal proceedings. To show this, it is only necessary to suggest a few cases. For instance, the county may let a contract to construct a building or bridge, and may therefore take a note or bond and mortgage as security for the due performance thereof; it may compound a debt due the county by the sureties of a defaulting officer, and may, of course, take a note and mortgage for the sum accepted in lieu of the whole debt; it may also accumulate a fund by a limited tax, during a period of years, wherewith to construct an expensive bridge or building, and may in the mean time loan the fund as it is collected upon the note and mortgage. These acts are necessarily incidental to the powers expressly granted to the county. Indeed, the last instance is probably included in the express power to manage and care for “the county property, funds, and business.”
From the complaint m the case of Board of Com’rs of Lane Co. v. Alexander, it appears that the note and mortgage sued on were given to the county treasurer. By section 20 of the act of August 14, 1848, (9 Stat. 323,) it was provided that sections 16 and 36 of the public lands of the territory should be “reserved for the purpose of being applied to schools” therein. By the act of January 7, 1S56, (Sess. Laws, p. 69,) it was provided that the school lands in the various counties should be disposed of by the county superintendents of schools, and the proceeds deposited with the territorial treasurer; and by the act of January 30, 1858, (Id. 43,) that said proceeds should be paid into the county treasury, and it was also thereby made the duty of the respective county treasurers to loan the same under certain regulations therein prescribed, upon note and mortgage, for a period not exceeding three years.
The only money which a county treasurer was authorized by law to loan at the date of this note and mortgage was this school fund, and the reasonable inference is- that
The only question, then, open to consideration in the case is, whether the decree was given in such suit or not The decree and suit, being in favor of different plaintiffs, are not presumed to be a part of the same proceeding, although me subject-matter appears to be the same. For aught that appears, the suit by the board of commissioners may have been dismissed or abandoned as a mistake, and another one brought in the name of the county in which this decree was duly given. The circuit court of Lane county is a court of general jurisdiction, and therefore the presumption is in favor of the regularity of its proceedings. In such a court all things are presumed to have been rightly done. Miller v. U. S., 11 Wall. [78 U. S.] 299. Therefore, the presumption is that the decree in question was duly given in a sufficient proceeding; and if from the records it appears that such decree might have been given in either a suit by the Board of Com’rs of Lane Co. v. Alexander, the presumption is that .it was given in the latter, rather than the former, because that would be legal, and the other not. But the plaintiff contends that it appears affirmatively from the record that this decree was given in the suit of the Board of Com’rs of Lane Co. v. Alexander. The ground of this claim is that the clerk of the circuit court of Lane county has appended to a copy of the complaint, summons, and return thereon in said case and the decree in Lane County v. Alexander an official certificate of the date of April 14, 1879, to the effect that he has carefully compared said copies “with the original judgment roll in the suit of Lane County v. Robert Alexander,” then on file in this office, and that they are correct copies of the whole thereof; and, further, that, according to the records and files of his office, no other paper than these “was ever filed or made in said suit.” In this certificate the clerk does impliedly assert that there is in his office a judgment roll constituted by the papers of which these are copies, and the argument from this fact is, that it is conclusive evidence that the decree entitled Lane County v. Alexander was really given in the suit of Board of Com’rs of Lane Co. v. Alexander, and is therefore void, such suit ‘being a nullity for want of a plaintiff. But can the clerk certify that there is or is not a judgment roll on file in his office, or that any given number or kind of papers therein constitute such a roll? It is clear in my judgment that he cannot. The only fact of which his certificate is evidence, is that the paper to which it is appended is a true copy of the original then on the files or records of his office. Being the custodian of the original, he is authorized to make a copy thereof, and his certificate is proof of that fact. Civil Code Or. §§ 568. 720, 738. But with this his power ends; and whether the paper is a judgment roll or not, must be determined by itself. If a clerk certifies, that a paper is a true copy of an entry in the records of his office, and that the same is a judgment in a particular action, the latter part of such certificate is extra-official, and of no effect. For whether such an entry is in law a judgment in the particular action mentioned, or at all, is a question of law to be determined by the court when and where it may arise, and not the clerk.
"What constitutes a judgment roll, and when and by whom it shall be made, is set forth with particularity in section 209, Civil Code Or. It provides that the “clerk shall prepare and file in his office the judgment roll” before the next term of the court after docketing the same. The power of the clerk to make this roll does not extend beyond the next term, unless perhaps upon an order of the court allowing the same to be done thereaft
Objection was also made to this decree for want of certainty in the description of the premises directed to be sold and the amount to be paid the plaintiff therein. The description of the premises is as follows: “Claim No. 70 in T. 20 S., R. 3 W., of the Wallamet meridian.” The survey of a donation claim is a part of the public surveys of the country, and therefore a description of a tract of land, as claim No. 70 in a certain township and range, is just as certain as a description by reference to a certain section in said' township and range. The word “claim” in the surveys under the donation act is used to designate a tract of land claimed by a settler under such act — a donation claim. The premises are so described in the patent certificate and patent; and it is equally as certain as one by the section or subdivison thereof. The decree directs that the premises be sold, and that out of the proceeds the plaintiff therein be paid one thousand and seventy-nine dollars and fifty cents, with interest from date. There is no uncertainty in the decree in this particular. There must be a finding for the defendant, that he is the owner of the premises.
[Nowhere reported.]