101 F. 665 | 8th Cir. | 1900
Lead Opinion
after stating the case as above, delivered the opinion of the court.
This cause having been decided below in favor of the defendant city on the ground that the judgment of the circuit court for the Sixth judicial circuit of the state of South Dakota in the mandamus suit brought by James J. Ransom, the present plaintiff in error, against Corwin D. Mead, the city treasurer of the city of Pierre, conclusively established that the coupons in suit were issued without authority of law, and were, therefore, void, the principal question that was discussed on the argument was whether the judgment of the state court in the mandamus suit could be pleaded and received in evidence in the present action as a former adjudication. It is true that counsel for the city endeavored to support the judgment below on the additional ground that the coupons in suit must he regarded as void irrespective of the former adjudication, because at the lime the bonds were issued the city had already exceeded the limit of valid .indebtedness; but the trial court overruled the latter contention, and its action in that respect was strictly in accordance with two decisions of this court where the various points urged by the city in support of the latter defense were fully considered and decided adversely to ils contention. Board of Education of City of Huron v. National Life Ins. Co., 36 C. C. A. 278, 94 Fed. 324; City of Huron v. Second Ward Sav. Bank, 57 U. S. App. 593, 30 C. C. A. 38, 86 Fed. 272. We discover no reasons for altering in any respect the views heretofore expressed by this court in the cases last cited, and accordingly agree with the learned trial judge that but for the rendition of the judgment in the mandamus proceeding the plaintiff would have been entitled to a verdict for the full amount of the coupons in suit. Since this case was argued, and -while it has been under advisement, the supreme court of South Dakota has decided the mandamus case against the city treasurer of the city of Pierre, and we have been furnished with a certified copy of its decision, which was promulgated on March 2, 1900, but is not as yet officially reported. Insurance Co. v. Mead, 82 N. W. 78. An examination of that decision, which contains a careful review of all the questions involved in the controversy between the city and the bondholder, shows that the supreme court of the state has decided the following propositions: First, that the city of Pierre, under its charter, did have the power to issue bonds for the purpose of funding its outstanding indebtedness, which appears to have been one of the mooted points in the mandamus suit; second, that, although the territorial limits of the city of Pierre and the school district embracing the city were coextensive, yet the debts of the latter cannot be added to those
On the argument of this cause it was urged on behalf of the plaintiff in error that the trial court erred in holding that the judgment in the mandamus proceeding was conclusive as respects the validity of the bonds in controversy — First, because section 5343 of the Compiled Laws of Dakota of 1887 declares that “an action is deemed to be pending from the time of its commencement until' its final determination upon appeal, or until the time for appeal has passed, unless the judgment be sooner satisfied”; and, second, because the parties to the mandamus suit and the subject-matter of that suit were not the same as in the case at bar. The majority of the members of this court entertain the view, however, that neither of these propositions is tenable. Concerning the second of these contentions, it may be said that, while the mandamus suit was brought against the city treasurer, and not against the city by name, yet that officer was sued in his official capacity, and not as an individual. He did not defend the action for his personal benefit, but in right of the, city, and, as custodian of its funds, to protect them against an illegal demand. The city permitted him to so defend, and the defense was doubtless made at the city’s expense. In that proceeding the city of Pierre was in reality challenging the validity of the bonds now in controversy in the name of its treasurer, and for its own benefit and advantage. If that suit had resulted differently, the city would not have been heard to say that it was not bound by the judgment, because it was not sued in its corporate name, but in the name of one of its officers. The record also shows that the defenses interposed, litigated, and decided in that proceeding were identically the same as those which were interposed and litigated in the case at bar, except the issue tendered by the plea of a former adjudication. Under these circumstances the last-mentioned plea was well made, and was sustained by the record made in the mandamus suit, which was introduced in evidence. Holt Co. v. National Life Ins. Co., 25 C. C. A. 469, 80 Fed. 686; Scotland Co. v. Hill, 112 U. S. 183, 5 Sup. Ct. 93, 28 L. Ed. 692;
The first contention of the plaintiff in error, stated above, presents a question of greater difficulty. In many cases the question has been mooted whether, when a writ of error has been sued out, or when an appeal has been taken which operates essentially as a writ of error, to review a judgment at nisi prius, and a supersedeas bond has been given to stay proceedings, such a judgment may be received in evidence in another suit between the same parties in support of the plea of res judicata; and, while the decisions upon this question have not been uniform, yet, in onr judgment, the weight of judicial opinion, as well as sound reason, is that, when a case which is removed to an appellate court by a writ of error or an appeal is not there tried de novo, but the record made below is simply re-examined, and the judgment either reversed or affirmed, such an appeal or writ of error does not vacate the judgment below, or prevent it from being pleaded and given in evidence as an estoppel upon issues which were tried and determined, unless some local statute provides that it shall not be so used pending the appeal. A supersedeas bond merely operates to stay an execution or other final process on the judgment. It does not vacate the judgment, nor prevent either party thereto from invoking it as an estoppel. Railway Co. v. Twombly, 100 U. S. 78, 81, 25 L. Ed. 550; Willard v. Ostrander, 51 Kan. 481, 32 Pac. 1092; Parkhurst v. Berdell, 110 N. Y. 386, 392, 18 N. E. 123; Scheible v. Slagle, 89 Ind. 328; Faber v. Hovey, 117 Mass. 107; Thompson v. Griffin, 69 Tex. 139, 6 S. W. 410; Moore v. Williams, 132 Ill. 589, 24 N. E. 619; Bank v. Wheeler, 28 Conn. 433; Oregonian Ry. Co. v. Oregon Railway & Navigation Co. (C. C.) 27 Fed. 277, 284; Cloud v. Wiley, 29 Ark. 80; Cain v. Williams, 16 Nev. 429; Freem. Judgm. § 328; Elliott, App. Proc. § 544, and citations.
It is insisted, however, as before stated, that the statute of South Dakota quoted above was intended to prevent a judgment from being pleaded as an estoppel during the pendency of an appeal, and that view of the effect of the statute is supported by certain California decisions, in which state a similar statute has been enacted. Naftzger v. Gregg, 99 Cal. 83, 33 Pac. 758; In re Blythe, 99 Cal. 472, 34 Pac. 108; Story v. Commercial Co., 100 Cal. 41, 34 Pac. 675.. On the other hand, in the state of Oregon, where substantially the same statu! e is in force, it is held that the statute was not designed to prevent a judgment from being pleaded in bar of another suit on the same cause of action during the pendency of an appeal from the judgment. Day v. Holland, 15 Or. 464, 468, 469, 15 Pac. 855. The statute now under consideration was enacted in the Dakotas before it was enacted in California, so that it cannot be said that the California doctrine became the law of the territory of Dakota by adoption. The decisions in California and Oregon are merely persuasive authority. While the supreme court of the state of South Dakota has never as yet-placed an authoritative construction upon the statute in a case where a judgment that had been obtained in a civil action was pleaded in bar to another suit between the same parties during the pendency of an appeal from the judgment, yet it has held, notwithstanding the
In this state of the authorities and upon an independent consideration of the question we have reached the conclusion that the Dakota statute to which the discussion relates was not intended to prevent a final judgment of one of its courts of superior jurisdiction from being pleaded in bar to another suit between the same parties and, upon the same cause of action during the pendency of an appeal therefrom, but that its purpose was to affect purchasers of property which is in litigation with, notice of the litigation until the litigation is ended. It is well known that courts have at times disagreed as to whether one who purchases property which is in litigation intermediate a judgment at nisi prius and the expiration of the time limited for suing out a writ of error or taking an appeal should be regarded as a bona fide purchaser, or as affected with notice by lis pendens if an appeal is subsequently taken. Some courts have answered this question in the affirmative, others in the negative. Rector v. Fitzgerald, 19 U. S. App. 423, 427, 428, 8 C. C. A. 257, 59 Fed. 808, 810, 811; Taylor’s Lessee v. Boyd, 3 Ohio, 337, 352; Eldridge v. Walker, 80 Ill. 270; Macklin v. Allenberg, 100 Mo. 337, 13 S. W. 350.; Pierce v. Stinde, 11 Mo. App. 364; McCormick v. McClure, 6 Blackf. 466; Debell v. Foxworthy’s Heirs, 9 B. Mon. 228; Harle v. Langdon’s Heirs, 60 Tex. 555, 562; Marks v. Cowles, 61 Ala. 299. We accordingly incline to the view that the statute was intended to settle this debatable point in South Dakota by saying, in effect, that one who purchases property after a judgment, but prior to the expiration of . the time limited for an appeal, shall be deemed a purchaser pendente lite. In the absence of the statute aforesaid, the suing out of a writ of error or the taking of an appeal might be regarded as the institution of a new suit, and as having no effect on a title acquired before an appeal was taken. In our judgment, the statute was not designed to have any other force and effect than that last stated. It can hardly be supposed that it was intended to encourage litigants to bring repeated suits to settle the same controversy, and it ought not to be given an erroneous interpretation because by so doing the ends of justice would perhaps be subserved in the present instance.
In view, however, of the recent decision by the supreme court of South Dakota, the substance of which has been heretofore stated, the question to be decided at this time is not in all respects the same as the one which was discussed on the trial below and at the hearing in this courts Assuming, in view of what has already been said, that the judgment in the mandamus suit was pleadable in bar, and determinative of the plaintiff’s rights in the case now in hand so long as that judgment was unreversed, we are nevertheless confronted with the inquiry whether it should be given that effect when it is shown by a duly-certified copy of the' opinion of the supreme court of South Dakota that the judgment in question has been vacated and annulled for error. As a general proposition, it is doubtless true that
Concurrence Opinion
I concur in the result in this case on the ground that under section 5343 of the Compiled Laws of Dakota of 1887, which declares that “an action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment, be sooner satisfied,” the judgment in the mandamus suit which was pending upon appeal in the supreme court of the state of Dakota when this suit was tried was not then res adjudieata, and upon the merits the judgment below ought to be reversed. Sharon v. Terry (C. C.) 36 Fed. 346; In re Blythe’s Estate, 99 Cal. 472, 475,
