108 F. 505 | 8th Cir. | 1901
Lead Opinion
after stating the case as above, delivered the opinion of the court.
The issue concerning the trial of which the chief complaint is made in this case was whether or not certain county warrants found in the office of the county clerk of the plaintiff in error about the year 1898 were exchanged in 1882 for any of the 15 funding bonds upon which this action was founded. This was a very simple issue of fact. T,o establish its claim that some of these county warrants were exchanged for some of these bonds, the county offered in evidence certified copies of three lists of warrants written on the letter heads of Chase & Taylor, aggregating, respectively, $15,619.24, $34,429.98, and $15, 305.50, together with three bundles of county warrants corresponding in dates and amounts with these lists. These warrants were found in the office of the county clerk of the county of Lake, with these lists wrapped around them, when the present clerk entered upon the discharge of the duties of his office. Neither of these lists bore any signature or date, and no witness came to testify when, why, or by whom they were made. It is earnestly contended that the rulings of the court below that this evidence was incompetent to prove the fact that any of these warrants were exchanged for any of the bonds in issue was a fatal error. But the established rules of evidence which control the trial of an issue of fact between adverse litigants are not suspended or abrogated when one of the parties to the action is a county or a municipality. Hearsay and self-serving declarations are as pernicious and incompetent to establish a claim or a defense of a county as they are to prove a cause of action or a defense of an individual. If the issue of the exchange of these warrants for these bonds had been on trial between private parties, the defendant certainly could not have established the exchange by proof either that he had himself said or written, or that Chase & Taylor or any other person had said or written, that such an exchange had been made. The former statement would have been a mere self-serving declaration, and the latter the baldest hearsay. The plaintiff would have been entitled upon such an issue to the testimony, under oath,' of the witnesses who knew the facts, and to an opportunity to cross-examine them, and in the absence of such evidence the defendant would surely have failed. These rules are equally applicable to the trial of such an issue between a private individual and a county, in the absence of any modification or abrogation thereof by act of congress or of the legislature. The officers of a county are its agents. Their acts and statements in the discharge of their official duties are the acts and
Xow, these lists of warrants were not signed by Chase & Taylor or by (he county clerk, and they did not state that any of the warrants there described had been exchanged for any of the bonds in suit; and for these reasons, as we have shown, they were not competent evidence. But if they had contained such a statement, and if they had been signed by Chase & Taj lor and by the county clerk, how would those facts have made them evidence against this hank? They would still have been res inter alios acta and mere hearsay as against an innocent purchaser of these bonds. They would still have been made by Chase & Taylor and the clerk when they were not witnesses, without notice to the defendant in error, without opportunity for cross-examination, and without the indispensable qualification of an oath. This was an action by the hank, an innocent purchaser of these bonds, against their maker, the county. Chase & Taylor and the clerk of that county were strangers to the hank, and their statements of their transactions were no evidence against it of the truth of the stories they told. The hank had the right to their testimony under oath, and to an opportunity 1o cross-examine them, before their narratives became evidence against it. The lists of warrants and the warrants they inclosed were therefore incompetent as evidence in this case, under" general and well-settled rules of law.
It is insisted, however, that the following statutes of the state of Colorado qualified these lists and warrants for introduction in evidence:
“Copies of all documents, writs, proceedings, instruments, papers and writings duly filed or deposited in the office of any county judge, county clerk, or county treasurer, and transcripts from hooks of record or proceedings kept by anv of said officers, with the seal of his office affixed, shall be prima facie evidence in all cases.” Act March 24, 1877 (1 Mills’ Ann. St. p. 788, § 922). “A copy of any record, or document, or paper, in the custody of a public officer of this state, or of the United States, within this state, certified under tins official seal, or verified by the oath of such officer †<5 he a true, full and correct copy of the original in his custody, may be read in evidence in an action or proceeding in the courts of this state, in the like manner, and with the like effect, as the original could be if x>roduced.” Civ. Code 1877, § 416; Mills’ Ann. Code, § 422.
The claim of counsel for the county is based upon the statute first quo fed. It is not that this statute had the effect to make any document or writing competent, relevant, or material evidence of the facts slated therein, hut that it had the effect to make a certified copy of
It is assigned as error that the court rejected the county clerk’s account book, which was practically considered and rejected in Dudley v. Board, 80 Fed. 672, 26 C. C. A. 82, 49 U. S. App. 336, and Board v. Sutliff, 97 Fed. 270, 38 C. C. A. 167. This book was not a record of daily transactions. There is no statute of Colorado which required it to be kept. It was a mere statement of conclusions which the clerk at the end of each six months drew from an examination of other records and writings, and wrote down in this book. It consisted of summary statements of accounts with 15 different funds, in this general form:
Lake County In Account with County Treasurer, Expenditures Aeet.
' Road Eund.
1880. ' '
Jan’y 1. Total expenditure on county roads in repairing, making,
and bridging . $4,101 84
Interest paid on warrants. 69 28
$4,171 12
*513 1880.
Jan’y 1. By amt. of road warrants can. §2,820 59
By outstanding indebtedness of Lake county in road warrants, January 1, A. I). 1880. To balance. 1,850 53
Sl,1"i 12
In addition to these sta lomen Is of balances, it contained a summary statement of the aggregate amount of warrants outstanding at the end of each six: months. It was offered in evidence to prove (lie amounts of outstanding warrants and the amounts of the debts of the count} at the various times when these semiannual statements were written down in it. There was a general statute in effect in Colorado which required a public record of the indebtedness of this county to be made in a certain way by the county commissioners, and to be published at certain times. But this account book does not comply with that s tal ule, and the counly never did comply with it in any way. Dudley v. Board. 80 Fed. 672, 677, 26 C. C. A. 82, 87, 19 U. S. App. 336, 345; Board v. Sutliff, 97 Fed. 270, 279-281, 38 C. C. A. 187, 175-177. It is evident from an inspection of this book that the written statements of the amounts outstanding and of the balances of the various funds at the respective times when they purport to have been written in this book were mere conclusions which the clerk or clerks who made them drew from an examination of other writings. If the writers of this book had been placed upon (he stand as witnesses, and had been asked what they found to be the amount of these outstanding Man-ants and the balances of these accounts from an examination of íhe liles and records, 1 heir testimony would not have been competent, without an introduction of the writings from which-they drew their conclusions. Much less is their written statement of these conclusions, without oath and without opporiunity for cross-examination. As against the defendant in error such statements of such clerks are nothing but hearsay. The fact must not be forgotten or overlooked in the considera lion of all ihe questions of evidence in this case that this bank was no party to the acts, records, or writings of this county, or of its officers and agents. To all these it is a stranger. This was an action bv this stranger, the bank, against the county. The latter alleged that its indebtedness exceeded its constitutional limit at various times. It undertook to prove this averment. In the absence of any modifying statute, the .same rules of evidence obtain in the trial of that issue between these corporations that would have governed the trial of the same issue between individuals. The prior statements of its indebtedness by the county and its officers and agents, made for its own convenience, not in compliance with any re quiranent of the statute or the law, were no better evidence against the bank than the prior statements of any individual would be against Ms adversary in a lawsuit. They could not rise higher than self-serving statements, and the writings in this account book did not rise to that dignity, even, because they were not required to be made by the county clerk by any statute of the state, or by the nature of his office. They were therefore the mere unsworn statements of the man or men who.made them, and were incompetent, both because they were hearsay, and because the writer or writers, if sworn as witnesses, could
Another complaint of the plaintiff in error is that the trial court held, that the presumption was that the bonds were valid, and that the burden of,proof was upon the county to establish the fact that they had been exchanged for unauthorized obligations of the plaintiff in error. That ruling was made in this state of the case: The bank pleaded that it was a bona fide holder of its bonds, and that they were issued in exchange for warrants which evidenced valid debts of the county. The county denied these allegations, and averred that the warrants for which the bonds were exchanged evidenced unauthorized obligations of the plaintiff in error. The bank put its bonds and coupons in evidence. The county admitted that the bank was an innocent purchaser of them for value before maturity, without any notice of any defenses to them, except such as the constitution and laws imposed upon it. Where was the burden of proof under these circumstances? Conceding that the debt of the county exceeded its constitutional limitation on September 1, 1879, there were still two classes of valid warrants which the county might have issued, and which it might have had outstanding on January 2, 1882. when these bonds were exchanged for warrants: (1) Those issued for debts incurred prior to September 1, 1879 (Board v. Standley, 24 Cok);, 1, 49 Pac. 23); and (2) those issued after that date for the current expenses of the county for each year against taxes levied to pay those current expenses (Town-Lot Co. v. Lane [S. D.] 62 N. W. 982, 984; Shannon v. City of Huron [S. D.] 69 N. W. 598, 600; Lawrence Co. v. Meade Co., 10 S. D. 175, 177, 72 N. W. 405; Darling v. Taylor [N. D.] 75 N. W. 766; Grant v. City of Davenport, 36 Iowa, 396, 404; Spillman v. City of Parkersburg, 35 W. Va. 605, 14 S. E. 279; State v. Medbery, 7 Ohio St. 522, 528; State v. Parkinson, 5 Nev. 15, 24-28).
There might, therefore, have been legal outstanding county warrants of this county in 1882, — those representing the lawful obligations just specified, — for which the bonds in action could have been legally exchanged. These were refunding bonds, and the fact that the debt of the county exceeded its constitutional limitation when they were issued did not in itself invalidate them, because they did not create or increase the debt of the county, but simply changed its form. Hughes Co. v. Livingston (C. C. A.) 104 Fed. 306, 317; Board v. Standley, 24 Colo. 1, 9, 49 Pac. 23. There might, therefore, have been a state of facts under which these bonds might have been valid under the constitution and laws of Colorado. There might have been valid warrants outstanding for which these bonds were exchanged, and if, under the constitution and laws, there might have been a state of facts or circumstances under which the bonds could have been lawfully issued, the legal presumption was that such a state of facts existed, and that the bonds were valid, because the presumption was that the officers of the county faithfully discharged their duties, and
The fact that the bank unnecessarily alleged in its complaint that ihe debts evidenced by the warrants for which its bonds -were issued were legal obligations of the county did not impose upon it the burden of proving that fact by other evidence than the bonds themselves, because both the bonds and the warrants, for which the answer admitted they were issued, were prima facie evidence of the validity of the debts they evidenced, and because the complaint stated a good cause of action without that averment. Unnecessary allegations in a complaint require proof that would not have berm essential if the pleading had been confined to the indispensable averments only, when such allegations constitute an essential part of the statement of the cause of action. If the cause of action is well stated without them, they may be disregarded as surplusage, and they do not affect the issue. Geer v. Board, 97 Fed. 435, 442, 38 C. C. A. 250, 257; 1 Estee, Pl. & Prac. (4th Ed.) § 191; Bliss, Code Pl. § 215.
The result is that each of the bonds in question in this action constitutes a separate and independent promise of (his county, and forms the basis of a separate cause of action against it; each bond is sustained by (lie legal presumption which accompanies the warrants for which it was exchanged that they evidenced legal obligations of the county, and by the presumption which accompanies the bond itself that it was issued in exchange for valid warrants of the county; the burden of proof is upon the county to establish the fact that the debt iu exchange for which each bond was issued was an unauthorized obligation of the quasi municipality; and the presumptions of validity which accompany each bond go with it to the end of the trial, and must prevail, unless the county proves by a fair preponderance of competent evidence that the debt which it evidences was, in its inception, unauthorized and void.
There are other assignments of error in the trial of this case, but they are not material to its determination iu this court, because, if the rulings of which these assignments complain had been in accord witli the views of the counsel for the plaintiff in error, the judgment must still have been against them, because they failed .to produce any sufficient evidence of the identity of the warrants in question, and without that essential link in their chain of alleged facts their defense was
The action of the court in refusing a continuance and in denying a motion for a new trial on the ground of newly-discovered evidence is assigned as error. But rulings upon motions for a continuance and upon motions for new trials are the mere exercise of the discretion of the court, and do not constitute errors of law which are reviewable in the national appellate courts. Counsel for the plaintiff in error concede this to be. the general rule, but argue that motions for new trials upon the ground of newly-discovered evidence constitute exceptions to the rule, and may be reviewed by writ of error. The position is not tenable. The court exercises its discretion in granting or refusing a motion for a new trial upon the latter ground as much as when the ground is that the verdict was excessive, or that there was irregularity in the course of the trial. The decisions of the supreme •court clearly indicate that the rulings of the trial courts upon motions for new trials upon the ground of newly-discovered evidence constitute no exception to the general rule. Henderson v. Moore, 5 Cranch, 11, 3 L. Ed. 22; Newcomb v. Wood, 97 U. S. 581, 24 L. Ed. 1085; Mattox v. U. S., 146 U. S. 140, 147, 13 Sup. Ct. 50, 36 L. Ed. 917. The judgment below is affirmed.
Dissenting Opinion
(dissenting). At the time the bonds in suit were issued the county of Lake had exceeded the constitutional limit of indebtedness by hundreds of thousands of dollars. Under an act authorizing counties to fund their valid outstanding indebtedness, the county authorities issued funding bonds to the amount of half a million of dollars. These bonds were issued to retire county warrants, 90 per cent, of which had been issued after the constitutional limit of indebtedness had been reached and exceeded, and were, of course, void for that reason. The fact of this indebtedness was sufficiently disclosed by the public-debt record of the county, accessible to all, and of which the holders of warrants and all others were bound to take notice. The warrants in redemption of which the bonds were issued were offered in evidence and rejected. These warrants were found in the clerk’s office in the proper place for redeemed warrants of the county, where they had been for many years in official custody; and the dates, amounts of the warrants, and names and memoranda wrapped around the warrants tallied so perfectly with the bonds in suit as to leave little doubt that these were the warrants in redemption of which the bonds were issued. At any rate, it was for the jury to say whether they were the warrants, and the evidence offered undoubtedly tended to prove that fact, and was therefore competent. It is a radical error to hold that county warrants which were issued and dated after the constitutional limit of indebtedness had been reached and exceeded will be presumed to have been issued for an indebtedness contracted prior to the time the constitutional limit of indebtedness was reached. There is no such presumption of law. In this very case the fact is notoriously otherwise. The constitu-
The court, after indulging in a rhapsody over the rule of evidence which excludes hearsay testimony, — a matter quite foreign to any question of law or fact in the case, — proceeds to declare a series of presumptions of law which make it absolutely impossible for the county to prove a fact as open and notorious as the existence of the county itself. The presumptions declared are arbitrary, contrary to known facts, and have no foundation in the rules of evidence. The rules of evidence laid down by the court an; too exclusive. They exclude the facts of the case, and del ermine it upon presumptions which no jury would ever deduce from the facts. There is no recital in these bonds that they do not exceed the constitutional limit of indebtedness, and the county is not, therefore;, estopped by the recitals from showing that fact. Gunnison Co. v. Rollins & Sons, 173 U. S. 255, 19 Sup. Ct. 390, 43 L. Ed. 689; Lake Co. v. Graham, 130 U. S. 674, 9 Sup. Ct. 654, 32 L. Ed. 1065. In the case last cited, bonds of the ver-y same series of these in suit were held void by the supreme court of the United Stales. Beyond all doubt, this whole series of bonds is void, and they can be upheld only by overruling all rational rules for the investigation of Truth in a court of justice. The judgment of the circuit court should be reversed.