64 F. 103 | 8th Cir. | 1894
Lead Opinion
This was a suit on 63 county warrants that were issued for various purposes by tbe order of tbe board of county commissioners of tbe county of Hamilton, state of Kansas, during tbe years 1S86 and 1887, and that bad been duly assigned to James K. O. Sberwood, the defendant in error, who was tbe plaintiff! in tbe circuit court. Tbe petition contained 63 counts, each warrant having been declared upon separately. A written stipu
The statutes of Kansas, like the statutes of many other states, provide, in substance, that county treasurers shall pay warrants presented to them for payment, and shall mark the same “Paid,” if there is money then in their possession sufficient to pay the same, and, if not, that they shall certify that fact on the back of the warrants presented, with the date of presentation, and that they shall also keep in a hook a record of all warrants presented, showing the number, date, and amount of the warrant, and when presented and to whom payable, and that all warrants shall be paid in the order of their presentation, when funds come to their hands. Gen. St. Kan. 1889, e. 25, § 09.
The first [joint urged upon our attention is that a demurrer interposed to the petition on the ground that it did not state a cause of action should have been sustained, because there was no averment found in the petition that when the suit was commenced the county treasurer had money sufficient, to pay the warrants, or that a sufficient time had elapsed for the collection of money wherewith to pay them. We need not stop to determine the merits of this contention, because the record shows that the county did not stand upon its demurrer when it was overruled, but answered the petition, and entered into a long, expensive; and tedious trial, whereby it waived the point raised by the demurrer, even if it had merit. We have once or twice decided, in accordance with the rule which now generally prevails, that a demurrer will ordinarily be waived by answering to the merits. Where it is apparent that the transaction out of which a cause of action is supposed to have originated could not give rise to a meritorious cause of action, the rule is, of course, different; but a mere incompleteness or uncertainty of averment: — a failure to state some fact which should have been stated, to make a technically good declaration or complaint -will be of no avail in thk court when it appears that after a demurrer was overruled the party answered to the merits, and went to trial on issues raised by liis answer. Rush v. Newman, 7 C. C. A. 136, 139, 58 Fed. 158, and cases there cited; City of Plankinton v. Gray (decided at this term) 63 Fed. 415, and cases therein cited. In the present case the plaintiff in error attempted to save the same point last mentioned, after his demurrer had been overruled, and after he had answered, by an oral objection made before the referee “to the taking of any evidence for the reason that the petition failed to state facts suffi
An objection is made to a large number of the warrants in suit upon the ground that the claims or accounts upon which they were issued were not sufficiently itemized to satisfy the requirements of the Kansas statute. The statute provides, in substance, that no account shall be allowed by the board of county commissioners “unless the same shall be made out in separate items and the nature of each item stated,” etc. Gen. St. Kan. 1889, c. 25, § 28. The precise contention is that many of the claims when presented to the board of county commissioners for allowance were not itemized, or were not sufficiently itemized to conform to the statute, and that the warrants issued thereon are for that reason utterly void, and of no effect. This point cannot be considered, for the following reasons: We cannot determine whether the accounts were sufficiently or insufficiently itemized without inspecting them, and considering théir exact form and contents. The special findings made by the trial court do not incorporate the accounts or “vouchers,” as they are termed, into the findings, and do not attempt to state their contents. These so-termed “vouchers” are merely the evidence on which the special findings are based, and we are not required to consider the evidence, nor could we do so if we so desired. It is our function to decide whether upon the findings as made, accepting them as conclusive, the conclusion of the court was right. Walker v. Miller, 8 C. C. A. 331, 59 Fed. 869; Burr v. Navigation Co., 1 Wall. 99, 102. The findings generally recite that the account on which the warrant therein referred to was issued “was itemized” or “duly itemized.” Tn a few instances the finding is that the voucher was not “very definitely itemized,” or language to that effect; but even in such' cases the finding, as a whole, shows that the court concluded that the various vouchers had been sufficiently itemized, and we cannot review that conclusion of the trial court, the vouchers not having been incorporated into the findings so as to bring them before us for examination.
Another subject of contention is the nonverification of some of the accounts or vouchers on which certain of the warrants were issued. The special findings do show that a few of the vouchers were not verified, although the statute heretofore cited (section 28, c. 25, Gen. St. Kan. 1889) directs that they “shall be verified by affidavit setting forth that the same is just and correct and remains due and unpaid.” The circuit court appears to have held that the provision, is directory, and that, in a suit on a warrant which is issued on an unverified claim, there may be a recovery notwithstanding the defect in the voucher. This ruling is assigned for error. It is no doubt the law that if an auditing board, like the board of county commis-
It is finally contended that some of the warrants in suit were issued for purposes not authorized by law. In the discussion of this point we have only to inquire and to determine whether the prima facie case made against the county by the warrants themselves is overcome by facts disclosed by the special findings, which show
Fed. Cas. No. 12,794
Concurrence Opinion
(concurring). I concur in the result on the ground that the complaint states facts sufficient to constitute a cause of action, and that the positions' taken in the opinion upon the other questions discussed are sound. I am of the opinion that the objection to the introduction of evidence on the ground that the complaint does not state facts sufficient to constitute a cause of action is sufficiently definite to raise the question of its sufficiency. Rev. St. § 914; Gen. St. Kan. pars. 4172, 4174; Brown v. Smelting Co., 32 Kan. 528, 530, 4 Pac. 1013; Bank v. Haden, 35 Mo. 358, 362; Morgan v. Bouse, 53 Mo. 219, 221; Monette v. Cratt, 7 Minn. 234 (Gil. 176, 180); Brown v. Manning, 3 Minn. 35 (Gil. 13); State v. Bachelder, 5 Minn. 223 (Gil. 178); Lee v. Emery, 10 Minn. 187 (Gil. 151); Drake v. Barton, 18 Minn. 462 (Gil. 414); Henderson v. Johns, 13 Colo. 280, 285, 22 Pac. 461; Plow Co. v. Webb, 141 U. S. 616, 623, 12 Sup. Ct. 100; Slacum v. Pomery, 6 Cranch, 221.