120 N.W. 555 | N.D. | 1909
This litigation arose in the district court of Barnes county, and plaintiff’s cause of action is based upon 13 alleged negotiable bonds claimed to have been issued by defendant school district on June 28, 1892, aggregating the sum of $5,700, payable to one Miller, or bearer, and purchased before maturity for value by plaintiff, which bonds, it is claimed, were issued in accordance with the provisions of an act of the legislative assembly of the territory of Dakota, approved March 11, 1887 (Laws 1887, p. 39, c. 11), entitled “An act to provide for the refunding of the outstanding indebtedness which existed prior to July 30, 1886, for any incorporated board of education or school district in the territory of Dakota;” a copy of such act being printed on the back of such bonds. Among other defenses relied upon, defendant denies that the alleged bonds were issued to refund outstanding in
The trial -court also- made conclusions of law as follows:
*620 “(1) The court holds as a matter of law that the above named James E. Walks was not the clerk of the defendant nor authorized to act as such at the time of the purported issuance of said bonds, nor at any time theretofore or thereafter.
“(2) That said bonds are wholly void as against the defendant upon the ground that the question of their issuance or of refunding the indebtedness of the' district was not submitted to a vote of the qualified electors, and upon the further ground that the said school district was wholly without authority to issue said bonds in any event because of the fact that less than 25 legal votes were cast at the preceding annual election held .therein.”
Pursuant to such findings and conclusions judgment was ordered and entered in defendant’s favor dismissing the action and for costs. In due time a statement of case was settled and a motion for a new trial was made and denied, and this appeal is from the judgment and also from the order denying such motion.
In disposing of this appeal, we are not at liberty to review any alleged error, unless it appears upon the face of the judgment roll proper. The statement of the case as settled contains no proper specification of errors of law occurring at the trial nor of the particulars in which it is claimed that the evidence is sufficient to sustain the findings. That such omission is fatal has repeatedly been held by this court. The statute (section 7058, Rev. Codes 1905) is explicit in requiring such specification of particulars to be incorporated in the statement, and that, “if no such specification is made, the statement shall be disregarded on motion for a new trial and on appeal.” Furthermore, the notice of intention to move for a new trial contains no designation of the statutory grounds upon which the same will be made as required by section 7065, Rev. CJodes 1905, and this omission is also fatal, and precludes us from examining the evidence.
From a careful examination of the judgment roll proper we fail to discover any reversible error therein. By the findings of the trial court, which must be accepted as final, such bonds had printed thereon the act in full under which it was claimed they were authorized to be issued as aforesaid. By section 9 of the act it is expressly provided that the question of refunding prior indebtedness shall be first submitted to a vote of the qualified electors of the district after giving certain notice therein prescribed of an election for such purpose, and that the proposition to issue such bonds must
The general and we believe the correct rule regarding! the binding effect of recitals in bonds is well stated in 1 Abbott’s Municipal Corporations, section 209, as follows: “The doctrine as applied to recitals is substantially this: That where legislative authority has been given a public corporation or its officials the power to issue bonds upon, the performance of some precedent condition, such as a particular manner of holding an election or the existence of some fact, and wheré it may be gathered from the legislative enactment that certain officials of the corporation are invested with the power to decide whether the conditions precedent have been complied with or such acts existed, their recitals or statement in the bonds issued by them that they have been so complied with, or that certain conditions exist, is conclusive of the fact and binding upon the corporation; for, as said by the Supreme Court of the United States: ‘The recital is itself a decision of the fact by the appointed tribunal.’ Such a recital or decision, as it is termed, is conclusive upon the corporation as to bonds,in the hands of a bona fide holder, who, it is held, as to such matters, is not bound to look for further evidence of a compliance with the conditions of issue. The recitals or statements work no estoppel, however, except when made by those officials or that tribunal either as specially designated or having the general power to perform such acts. If not made by those having authority to decide and assert the facts
Respondent’s counsel, in their printed brief, contend that chapter 11, p. 39, Laws 1887, was not in force at the date of the issuance of these bonds, as the same was impliedly repealed by chapter 62, p. 177, Laws 1890, and that under the latter act the bonds were clearly illegal under the decision of this court in case of Flagg v. School District, 4 N. D. 42, 58 N. W. 499, 25 L. R. A. 363, as well as numerous other authorities cited by them. It is unnecessary for us to determine this question in view of the conclusions above reached. If the act of 1890 aforesaid was in force, the bonds were clearly void, even in the' hands of an innocent purchaser, as no election was held for the purpose of submitting to the electors of the district the question of the issuance thereof, and no certificate of the county auditor was placed upon the back of such bonds as required by said statute. On the oral argument counsel for appellant contended that notwithstanding the fact that defendant district was without power to issue the bonds in suit, yet having, presumably with authority, issued the original bonds, it had implied authority independent of any statute authorizing their issuance to issue refunding bonds in lieu of the original ones. The trouble with this argument is that it runs counter to the express provisions of the statute, which, in effect, prohibited the defendant district from issuing such refunding bonds for the reason that there were not 25 legal votes cast in said district at the preceding election therein. In the face of this express statutory inhibition,
It follows from what we have above said the judgment and order appealed from must be affirmed.