Burrows v. Niblack

84 F. 111 | 7th Cir. | 1898

WOODS, Circuit Judge,

after making the foregoing statement, delivered the opinion of the court.

By statute in Illinois, a judgment will no.t be arrested'because of a defective count in a declaration which contains a good count. Iowa State Traveling Men’s Ass’n v. Moore’s Adm’rs, 34 U. S. App. 670, 19 C. C. A. 662, and 73 Fed. 750; 2 Starr & C. Ann. St. § 58, c. 110. The common counts of the declaration in this case being undeniably good, the first and second grounds of the motion in arrest of judgment were necessarily without merit, and the third ground is unavailing “because a motion in arrest of judgment can only be maintained for a defect apparent upon the face of the record, and the evidence is not a part of the record for this purpose.” Bond v. Dustin, 112 U. S. 604, 608, 5 Sup. Ct. 296. This disposes of the second specification of error, and, if the judgment is to be treated as one rendered upon a general finding by the court, and not “upon an agreed statement of facts or case stated,” the first and third specifications also present no question. The decisions to that effect are numerous. See Bond v. Dustin, supra; Martinton v. Fairbanks, 112 U. S. 671, 5 Sup. Ct. 321; Boardman v. Toffey, 117 U. S. 272, 6 Sup. Ct. 734; Jenks’ Adm’r v. Stapp, 9 U. S. App. 34, 3 C. C. A. 244, and 52 Fed. 641; Skinner v. Franklin Co., 9 U. S. App. 676, 6 C. C. A. 118, and 56 Fed. 783; Distilling & Cattle-Feeding Co. v. Gottschalk Co., 24 U. S. App. 638, 13 C. C. A. 618, and 66 Fed. 609; Phipps v. Harding, 34 U. S. App. 148, 17 C. C. A. 203, and 70 Fed. 468; Woodbury v. City of Shawneetown, 34 U. S. App. 655, 20 C. C. A. 401, and 74 Fed. 205; Seymour v. White Co., 34 U. S. App. 658, 20 C. C. A. 402, and 74 Fed. 207; Fourth Nat. Bank of St. Louis v. City of Belleville (decided Nov. 18, 1897, by this court) 83 Fed. 675. In Bond v. Dustin, supra, it is said that “since the statute [of March 8, 1865, re-enacted in sections 640 and 700 of the Revised Statutes of the United States], as before, a judgment upon an agreed statement of facts or case stated, signed by the parties or their counsel, and entered of record, leaving no question of fact to be tried, and presenting nothing but a question of law, may be reviewed on error.” See, also, Supervisors v. Kennicott, 103 U. S. 554, and casias there cited. That the agreement in this case, (hough perhaps sufficient in substance for the purpose, was not intended or understood to present a case stated, is shown by the lack of any statement in it to that effect, and by the fact that it was not entered of record, in or before the entry of the judgment, and that the court, instead of stating simply a conclusion of law, made a general finding, which was duly entered as the foundation of the judgment, reciting that oral as well as documentary evidence was heard. The bill of exceptions, which it may be observed was not necessary in an agreed case, is ambiguous, if not inconsistent, in its statements. After setting forth the agreement of the parties, it says that, “upon full consideration of the case stated, as aforesaid, the court [instead of declaring a conclusion of law merely] found the facts to be true as above stated,” implying, perhaps, especially since the contrary is not stated, that other evidence than the agreement was received in proof of the facts. If, however, questions of practice be disregarded, and the agreement of the parties be treated as showing a case stated, or as being the equivalent of a special finding of facts by the court within the meaning of sections 649 and 700 of the Revised Statutes, all objections to the pleadings which might be avoided bv amendment must be regarded as waived (Willard v. Wood, 135 U. S. 309, 10 Sup. Ct. 831), and the only question to be considered is whether the facts stated in the agreement justified the judgment entered. The principal objections urged are: (1) That the validity of the purchase by tins bank of its own stock can be questioned only by the government; (2) that the alleged liability of the bank for the return of the money can be enforced only in a court of equity; and (3) that a tender back of the shares of stock purchased was essential to the right of recovery of the price paid. The first objection is based upon that line of decisions of which illustrations are found in Bank v. Matthews, 98 U. S. 621, Bank v. Whitney, 103 U. S. 99, and Thompson v. Bank, 146 U. S. 240, 13 Sup. Ct. 66; but the present case, as we think, is governed rather by the principles declared in McCormick v. Bank, 165 U. S. 538, 17 Sup. Ct. 433, and Bank v. Kennedy, 167 U. S. 362, 17 Sup. Ct. 831, where the line of cases mentioned is distinguished. The transaction here in question was not a purchase made for the purpose of preventing, or which was necessary to prevent, loss upon a debt previously contracted, but, as set forth, it was a bald purchase by the bank of its own stock for cash, and necessarily involved for the time being a reduction pro tanto ■of the corporate stock. Even if it were not forbidden by the statute, the transaction would be inconsistent with public policy and with established principles of law. The suggestion that a reduction of stock by a national bank may be lawfully made under section 5143 of the Revised Statutes is irrelevant, because it is not shown, and without proof is not to be presumed, even if it were conceivably possible, that this transaction could have been justified under the provisions of that section. The purchase was outside of and beyond the powers, of the bank, and therefore, as a corporate act, was void from the beginning; and, while it appears from the agreement that the certificates of stock were indorsed in blank, and delivered to the president of the bank, the latter did not thereby acquire, nor the plaintiff in error part with, title to the stock. The money having been unlawfully paid out, the bank had an immediate right of action to recover it in an action of assumpsit. It was not necessary to go into equity, nor to offer a return of- stock. The judgment of the circuit court is affirmed.