74 F. 389 | U.S. Circuit Court for the District of Nebraska | 1896
(after stating tlie facts). On behalf of the defendant, exception is taken to the jurisdiction of the court on the ground that the plaintiff holds title to the coupons sued on and the bonds to which they belong by transfer from the original purchaser, J. G-. Taylor, who, being a citizen of the state of Nebraska, could not maintain an action thereon in that court. As the bonds and coupons are made by a corporation, they come within the exception to the usual rule that an assignee or transferer of a promissory note or other chose in action cannot maintain an action in the federal court unless the court would have jurisdiction in case the suit was in the name of the original owner of the chose in action. As it appears from the evidence that the plaintiff is the owner in his own right of coupons amounting to $2,100 of those sued on, it follows that the court has jurisdiction of the case. On behalf of the defendant it is sought to show that the canvass of the vote npon the question of the issuance of the bonds was incorrect, but I hold that the purchaser of the bonds had the right to rely upon the canvass and return made by the official canvassers, which
I also hold that the purchasers of the bonds, in determining or ascertaining- whether the aggregate issue of bonds exceeded the statutory limit, were not required to go to the books of the several precinct assessors to determine from them the amount of the assessable property of the county, but such purchasers were justified in relying upon the amount of the assessment as finally established by the board of equalization, and certified by the county clerk to the auditor of the state, which showed the valuation of the county to be $326,768.
I also hold that in January, 1880, when the bonds in question were issued, the county had the power to issue funding bonds under the provisions of the acts of the legislature of 1877 and 1879 to an amount not exceeding 10 per cent, of the assessed valuation of the county, to pay the outstanding and unpaid warrants and indebtedness of the county, and that an issue of bonds for that purpose not exceeding 10 per cent, of the assessed valuation of the county would not be invalidated because the county had previously issued bonds in aid of works of internal improvement, thus making the total issue of bonds in excess of 10 per cent, of the assessed valuation of the county. Since the' amendment of 1883 and the ruling thereon by the supreme court of Nebraska in State v. Babcock, 18 Neb. 141, 24 N. W. 556, rendered at the July term, 1885, the power of the cohnty may have become limited to a total issue of bonds not exceeding 10 per cent, upon the assessed valuation,' but in January, 1880, there had been no such ruling of the supreme court, and, so far as I am now advised, the supreme court of the state has never lield that previous to the amendment of 1883 the power of the county to issue bonds had been exhausted when the total issue for all purposes reached 10 per cent, upon the assessment of the county. In January, 1880, therefore, there was no express statutory declaration that the power to issue bonds was limited to 10 per cent, upon the assessed valuation in the aggregate, and there was no decision to that effect by the supreme court. There was a statute which expressly authorized the issuance of bonds to fund the outstanding and unpaid warrants and indebtedness of the county, with a limitation that bonds should not be issued to an amount exceeding 10 per cent, upon the assessed valuation of the county. The county authorities construed this limitation to apply only to bonds issued under the provisions of the statute as it there existed; and under this construction they submitted to the electors of the county the question whether bonds to an amount substantially equal to 10 per cent, of the assessed valuation should be issued to fund the warrants and other indebtedness of the county, and the proposition was carried by a large majority of the votes cast. Under these circumstances, and in view of the fact that it is at least an open question whether the 10 per cent, limitation found in the acts of 1877 and 1879 should be held to apply to or include any bonds except those issued under
I further hold that under the provisions of the statute of Nebraska actions must be brought in the name of the real party in interest, and therefore in this action plaintiff cannot recover upon the coupons belonging to William G-. Ball, Darling Bros., the Bradford Savings Bank, and the Manufacturers’ National Bank. The action upon the coupons owned by these parties must be dismissed, without prejudice.