59 Kan. 512 | Kan. | 1898
The Attorney General, on behalf of the State, instituted this action in the District Court of Wichita County to recover the amount of three interest payments, claimed to be due on each of thirty-five bonds of Wichita County for a thousand dollars each. Only the amount of the interest coupons sued on is directly involved in the case, but, as the right of the plaintiff to recover depends on the validity of the bonds, the indirect effect of the decision materially affects the permanent school fund in which the bonds are held.
The bonds were issued on the first of January, 1892. The recitals in them show that they were issued for the purpose of refunding the bonded indebtedness of the County, under chapter 163 of the Laws of 1891, which was an act amendatory of chapter- 50 of the Laws of 1879 ; that the indebtedness refunded existed at the time of the passage of the act of Í891; that the proper evidence of such indebtedness had been de
The defendant filed a long answer, verified on belief by the county attorney, denying generally the allegations of the petition, except as expressly admitted, and alleging that it became one of the organized counties of the State on the twenty-fourth of December, 1886 ; that on May 26, 1887, the Chicago, Kansas, & Western Railroad Company presented a petition to the Board of County Commissioners to submit to the voters of the county a proposition to aid in the construction of its railway through the county; that the Board, on the first of July, 1887, illegally declared the proposition carried, by throwing out the vote of two townships, and illegally ordered the clerk of the county to make a subscription for $80,000 of the capital stock of the company in exchange for $80,000 of county bonds; that the clerk illegally made such subscription ; that the only consideration for certain of the bonds described in the petition was such pretended subscription ; that the sole consideration for certain other bonds, also described by number, was,
To this answer the plaintiff filed a reply containing, first, a general denial; second, a statement that the defendant had ratified the bonds and coupons in controversy, by the voluntary payment of interest; and alleging that the plaintiff was a bona fide purchaser of the bonds before maturity, without' notice of the in-, junction proceedings mentioned in the answer.
On these pleadings the case was tried to the court without a jury. Judgment was rendered for the defendant. The plaintiff brings the case here for review.
The questions involved are discussed, by both parties, much as if the case were on trial here both as to the law and the facts. Of course this court is concluded on all controverted questions of fact by the findings of the trial court, and can only review the questions of law properly raised there and regularly presented here. Doubtless this course was adopted because of a desire to have the merits of the contro
The most important question of fact at issue was whether the bonds now held in the State school fund were issued in exchange for railroad bonds, actually outstanding at the time they were issued, or were issued in compromise of the claims of the railroad companies for such bonds under subscriptions to the capital stock of the companies. On this most important question the evidence is unsatisfactory. On the side of the plaintiff are the recitals of the bonds, and a journal entry of the proceedings of the Board of County Commissioners showing their doings at the time the refunding bonds were issued, wherein it is recited that these bonds were issued in exchange for railroad bonds, surrendered by the railroad companies, which were destroyed in the presence of the Board by the clerk. The entries in the journal of the Commissioners were admitted in evidence, but proof was allowed to be introduced with reference to the handwriting in which the entries were made, and tending to show that they were not in the handwriting of the county clerk. Counsel, in the briefs, speak of these entries as copies, not as originals. Documents from the office of tho Auditor of State, purporting to be ■.signed by the members of the Board of County Commissioners, and also by the county clerk, identical in language with the entries on the journals of the county commissioners, which counsel for the State argue were the original orders, were offered in evidence, but
“The court finds from the evidence that the bonds describe’d in plaintiff’s amended petition and the coupons cut therefrom and that constitute the various causes of action in said petition were issued in violation of the order and decree of this court in the cases of Thomas Gallagher and Perry J. Cowgill v. The Board of County Commissioners of Wichita County, Kansas, et al., and the court finds that the orders of injunction issued by this court in those cases have never been vacated, but are and have -been since the-day of June, a. d. 1889, in full force, and that the public records in Wichita County, Kansas, was notice to the world that'the clerk and chairman of the board of county commissioners of Wichita County, Kansas, or the commissioners of said County and State have not power to issue those bonds and coupons sued upon.”
This action was brought by the State, which was a
relating to negotiable instruments before maturity. Winston v. Westfeldt, 22 Ala. 760, 58 Am. Dec. 278; Freeman on Judgments (4th ed.), § 194; Comity of Warren v. Marcy, 97 U. S. 96. Under’these authorities,
Various other considerations are urged by each party as of controlling force in its favor in this controversy, but the state of the record gives us no basis for directing a judgment in the case. It would seem to be an easy matter to show, by clear and satisfactory proof, the very important fact whether or not there were railroad bonds actually outstanding for which the refunding bonds were exchanged, without leaving the matter to be determined from the recitals in the bonds and inferences to be drawn from the public record.
While not presented as a ground of error, inasmuch as the case is to be sent back for a new trial, we remark that the court was in error in holding that the burden of proof rested on the plaintiff. There was no denial under oath of the execution of the bonds and coupons in suit. There is nothing on the face of them to impeach their validity. The burden was on the defendant to show it.
Por error in the admission and rejection of evidence, as above pointed out, the judgment must be reversed and the case remandedffor a new trial.