Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

(112 U. S. 713)

MATTOON 0. MCGREW.

(December 15, 1884.) HUSBAND AND WIFE-PURCHASE BY Wiex or CURTESY-RIGHTS OF CREDITORS IN DIsTRICT OF COLUMBIA.

Hitz v. National Metropolitan Bank, 4 Sup. Cr. REP. 613, followed, and decree of supreme court of District of Columbia reversed. Appeal from the Supreme Court of the District of Columbia.

8. 8. Henkle, for appellant. James Lownde and Leigh Robinson, for appellee.

WAITE, C. J. A motion has been made to dismiss this appeal because the value of the matter in dispute does not exceed $2,500. From the facts appearing in the record, supplemented as they have been by affidavits as to value, we are satisfied this motion should be overruled; and it is so ordered. It is conceded in the brief filed for the appellee “that the essential facts in this case are substantially like those in Hitz v. National Metropolitan Bank, 111 U. S. 722;" S. C. 4 SUP. Cr. REP. 613. That case was decided on full consideration after an elaborate argument on both sides, and we are satisfied with the conclusion then reached. We therefore reverse this decree, on that authority, and remand the cause, with instructions to enter a decree in accordance with the prayer of the bill, enjoining the appellee, McGrew, from selling, or attempting to sell, the marital right or interest of the husband of the appellant in the property described in the bill for the payment of his judg. ment against the husband. Reversed.

(113 U. S. 81)
POLLEYS and others 0. BLACK RIVER IMP. Co.

(January 12, 1885.) 1. PRACTICE - STATE OF WISCONSIN — CUSTODY OF RECORD-WRIT OF ERROR-TO WHA:

COURT DIRECTED.

As by the practice of Wisconsin the record itself is remitted by the state supreme court to the inferior court from whose judgment appeal was taken, a writ of error from the supreme court of the United States should, in a proper case, be brought to such inferior court, though the judgment of the latter was the judgment which

the state supreme court directed it to enter. 2. SamE-RECORD-Book-STATUTE OF LIMITATIONS.

It is the record of the judicial decision or order of the court found in the record book of the court's pruceedings which constitutes the evidence of the judgment and from the date of its entry in that book the statute of limitations begius to run In Error to the Circuit Court of Wisconsin for the County of La Crosse. 01. motion to dismiss.

8. U. Pinney, for motion. M. P. Wing and I. C. Sloan, against motion. * MILLER, J. This is a writ of error to the circuit court of Wisconsin for the county of La Crosse, and a motion is made to dismiss it. The first ground of the motion is that the writ should have been directed to the supreme court of the state, and cannot be rightfully directed to the circuit court of the county. It appears that the defendant in error here was plaintiff in the circuit court of La Crosse county, and brought its action against Polleys and others for relief in regard to their obstructing the navigation of Black river and its branches. The circuit court denied the relief and dismissed the bill. On appeal, the supreme court of the state reversed this judgment and delivered an opinion that plaintiff was entitled to relief in the premises; and it made an order remanding the case to the circuit court, with directions “to enter judgment in accordance with the opinion of this (that) court." It appears by the cases cited to us, and by the course of proceedings in such cases in the Wisconsin courts, that the record itself is remitted to the inferior court,

V.58--24

and does not, nor does a copy of it, remain in the supreme court. Though the judgment in the circuit court was the judgment which the supreme court ordered it to enter, and was in effect the judgment of the supreme court, it is the only final judgment in the case, and the record of it can be found nowhere else but in the circuit court of La Crosse county. To that court, therefore, according to many decisions of this court, the writ of error was properly directed to bring the record here for review. Gelston v. Hoyt, 3 Wheat. 246; Atherton v. Fowler, 91 U. S. 146.

It is insisted that the writ of error was not brought within time. Section 1008 of the Revised Statutes declares that “no judgment, decree, or order of a circuit or district court, in any civil action at law, or in equity, shall be reviewed in the supreme court, on writ of error or appeal, unless the writ of error is brought or the appeal taken within two years after the entry of such judgment, decree, or order." This rule is applicable to writs of error to the state courts in like manner as to circuit courts. Scarborough v. Pargoud, 108 U. S. 567; S. C. 2 Sup. Ct. REP. 877. In the case of Brooks v. Norris, 11 How. 204, construing the same language in the judiciary act of 1789, it is said "that the writ of error is not brought, in the legal meaning of the term, until it is filed in the court which rendered the judgment. It is the filing of the writ that removes the record from the inferior to the appellate court, and the period of limitation prescribed by the act of congress must be calculated accordingly.” This language is repeated in Mussina v. Cavazos, 6 Wall. 355, and in Scarborough v. Pargoud, supra.

Though the writ of error in this case seems to have been issued by the clerk of the circuit court of the United States on the tenth day of May, 1884, and is marked by him for some reason as filed on that day, it is marked by the clerk of the court to which it is directed, namely, the circuit court of La Crosse county, as filed on the twenty-ninth day of that month. It is not disputed that this is the day it was filed in his office. This must be held to be the day on which the writ of error was brought. The judgment which we are asked to review by this writ was entered in the circuit court of La Crosse county, May 24, 1882. It is signed by the judge on that day, and is expressly dated as of that day, and it is marked filed on that day over the signature of the clerk of that court. This is the judgment, the entry of the judgment, and on that day the plaintiff in error had a right to his writ, and on that day the two years began to run within which his right existed.

It seems that the courts of Wisconsin, either by statute or by customary law, keep a book called a judgment docket. In this book are entered, in col. umns, the names of plaintiffs who recovered judgment, and the defendants against whom they are recovered. In another column is entered the amount of the principal judgment and the costs and the date of the judgment itself. This record is kept for the convenience of parties who seek information as to liens on real estate or for other purposes. This docket, however, is made up necessarily after the main judgment is settled and entered in the order-book, or record of the court's proceedings, and it may be many days before this abstract of the judgment is made in the judgment docket, according to the convenience of the clerk. It is the record of the judicial decision or order of the court found in the record-book of the court's proceedings which constitutes the evidence of the judgment, and from the date of its entry in that book the statute of limitations begins to run. It follows that the writ of error in this case was brought five days after the two years allowed by law had expired; and it must be dismissed. So ordered.

[ocr errors]

(113 U. S. 135) INDEPENDENT SCHOOL-Dist. OF ACKLEY, Hardin Co., Iowa, o. HALL.

(January 19, 1885.) 1. MUNICIPAL BONDS—NEGOTIABLE SECURITIES.

A municipal bond issued under the authority of law for the payment, at all events, to a named person or order, a fixed sum of money at a designated time therein limited, being indorsed in blank, is a negotiable security within the law

merchant. 2. SAME-STATUTE.

Its negotiability is not affected by a provision of the statute under which it was issued that it should be “payable at the pleasure of the district at any time before

due.” 3. SAME-RIGHT OP HOLDER TO SUE IN UNITED STATES COURT.

Consistently with the act of March 3, 1875, determining the jurisdiction of the circuit courts of the United States, the holder may sue thereon without reference to the citizenship of any prior holder, and unaffected by the circumstance that the municipality may be entitled to make a defense based upon equities between

the original parties. 4. SAME-School-Horse Bonds—Iowa STATUTE-CONSTITUTIONALITY OF.

An act of the legislature of Iowa entitled "An act to authorize independent school-districts to borrow money and issue bonds therefor for the purpose of erecting and completing school-houses, legalizing bonds heretofore issued, and making school-orders draw six per cent. interest in certain cases, ” is not in violation of the provision in the constitution of that state which declares that “every act shall em. brace but one subject, and matters properly connected therewith, which subject shall be expressed in the title.” In Error to the Circuit Court of the United States for the District of Iowa.

Galusha Parsons and John F. Duncombe, for plaintiff in error. C. C. Nourse and B. F. Kauffman, for defendant in error.

HARLAN, J. By an act of the general assembly of the state of Iowa, approved April 6, 1868, it is provided that independent school-districts shall have power and authority to borrow money, for the purpose of erecting and completing school-houses, *" by issuing negotiable bonds of the independent dis-* trict, to run any period not exceeding ten years, drawing a rate of interest not exceeding ten per centum, which interest may be paid semi-annually; which indebtedness shall be binding and obligatory on the independent schooldistrict for the use of which said loan shall have been made."

The act prescribes the mode in which the school-board shall submit to the voters of the district the question of issuing bonds, and declares that “if a majority of the votes cast on that question be in favor of such loan, then said school-board shall issue bonds to the amount voted,

due not more than ten years after date, and payable, at the pleasure of the district, at any time before due, which said bonds shall be given in the name of the independent district issuing them, and shall be signed by the president of the board and delivered to the treasurer, taking his receipt therefor, who shall negotiate said bonds at not less than their par value, and countersign the same when negotiated." With those statutes in force there was issued, in the name of the plaintiff in error, (defendant below,) certain instruments in the following form: “No. 1.

$500.00. "INDEPENDENT SCHOOL-DISTRICT, ACKLEY, HARDIN COUNTY, Iowa. “The Independent School-district of Ackley, Hardin county, Iowa, promises to pay to Foster Brothers, or order, at the Hardin County Bank, at Eldora, Iowa, on the first day of May, 1872, five hundred dollars, for value received, with interest at the rate of ten per cent. per annum, said interest payable semi-annually, on the first day of May and November in each year thereafter, at the Hardin County Bank, at Eldora, on the presentation and surrender of the interest coupons hereto attached.

"This bond is issued by the board of school directors by authority of an

137

election of the voters of said school-district, held on the twenty-third day of. August, 1869, in conformity with the provisions of chapter 98, acts Twelfth General Assembly of the state of Iowa.

“In testimony whereof, the said Independent School-district, by the board of directors thereof, have caused the same to be signed by the president and secretary, this first day of November, 1869. [Signed]

“W. H. ROBERTS, “President of the Board of Directors.

“S. S. LOCKWOOD,

"Secretary of the Board of Directors. [Countersigned] "F. EGGERT, Treasurer School-district."

To each was attached coupons in the following form:

"Treasurer of Independent School-district, Ackley, Hardin county, Iowa, will pay the holder hereof, on the first day of November, 1874, at the Harlin County Bank, at Eldora, Iowa, twenty-five dollars, for interest due on schoolhouse bond No. 8. [Signed]

“W. H. ROBERTS, President. “S. S. LOCKWOOD, Secretary.”

*139

cur.

The defendant in error, (plaintiff below,) who is averred to be a citizen of New York, became the holder of eight of these obligations, with interest coupons attached, each one being indorsed in blank by Foster Bros., the original payees. This suit was brought to recover the amount due thereon, without any averment in the pleadings as to the citizenship of the payees. The district made defense upon various grounds. The case was tried by the court without the intervention of a jury, and there was a general finding for the plaintiff, upon which a judgment was entered against the district. To that finding and judgment the defendant excepted, but without preserving, by bill of exceptions, the evidence upon which the court acted.

*The jurisdiction of the court below is questioned, upon the ground that the bonds in suit are not promissory notes negotiable by the law-merchant, within the meaning of the first section of the act of March 3, 1875, determining the jurisdiction of the circuit courts of the United States, and, consequently, that the court could not take cognizance of the case unless it appeared affirmatively that a suit could have been brought therein by the original payees, Foster Bros., had they not parted with the bonds. In this proposition we do not con

The recital, on their face, that they were issued on the authority of a popular election, held in conformity with a local statute, does not take from them the qualities and incidents of commercial securities. Indeed, the statute evidently contemplated that the bonds issued under its provisions should be negotiable instruments that would do the work of money in financial circles. They are described as “negotiable bonds,” to be used for the purpose of borrowing money to be applied in the erection and completion of schoolhouses for the district. Its treasurer was directed to negotiate them at not less than their par val and purchasers were assured by the statute that the indebtedness so incurred "shall be binding and obligatory on the independent school-district for the use of which said loan shall have been made." And this special enactment is in accord with the general law of Iowa; for, by the Code of that state, “notes in writing, made and signed by any person, promising to pay to another person, or his order or bearer, or to bearer only, any sum of money, are negotiable by indorsement or delivery in the same manner as inland bills of exchange, according to the custom of merchants,” while the transfer of “bonds, bills, and all instruments in writing by which the maker promises to pay to another, without words of negotiability, a sum of money, is declared to be subject to any defense or counter-claim which the maker or

debtor had against any assignor thereof before notice of assignment; thus showing that, equally in respect of negotiable promissory notes and negotiable bonds, the rights of the parties are determinable by the law-merchant. Iowa Code 1873, SS 2082-2084.

These instruments, although described in the Iowa statute as bonds, have every characteristic of negotiable promissory notes. They are promises in writing to pay, at all events, a fixed sum of money, at a designated time therein limited, to named persons or their order. Upon being indorsed in blank by the original payees, the title passes by mere delivery, precisely as it would had they been made payable to a named person or bearer. After such indorsement the obligation to pay is to the holder. The decisions of this: court are numerous to the effect that municipal bonds, in the customary form, payable to bearer, are commercial securities, possessing the same qualities and incidents that belong to what are strictly promissory notes, negotiable by the law-merchant. There is no reason why such bonds, issued under the authority of law, and made payable to a named person, or order, should not, after being indorsed in blank, be treated by the courts as having like qualities and incidents. That they are so regarded by the commercial world cannot be doubted. Manuf'g Co. v. Bradley, 105 U. S. 180. But it is contended that the word “negotiable,” in the Iowa statute, is qualified by that clause, in the same enactment, which provides that bonds issued under it shall be “payable at the pleasure of the district at any time before due.” These words were not incorporated into the bond. But if the holder took subject to that provision, as we think he did, it is clear that this option of the district to discharge the debt, in advance of its maturity, did not affect tho complete negotiability of the bonds; for, by their terms, they were payable at a time which must certainly arrive. The holder could not exact payment be fore the day fixed in the bonds. The debtor incurred no legal liability foi non-payment until that day passed. The authorities bearing upon this question are cited in Byles, Bills, (Sharswood's Ed.) c. 7; 1 Daniel, Neg. Inst. § 43 et seq.; Chit. Bills, 525 et seq.

In School-district v. Stone, 106 U. S. 183, S. C. 1 SUP. Cr. REP. 84, it was held, in reference to similar bonds issued by another independent school district in the same county, that their recitals were not sufficiently comprehensive to cut off a defense resting upon the ground that the bonds there in suit were in excess of the amount limited by the state constitution, and conse quently invalid. Applying that decision to the present case, counsel for the (listrict insists that, as these bonds may be open to such a defense as was made in School-district v. Stone, they cannot be deemed negotiable by the lawmerchant; in other words, that the negotiability of the instrument ceases whenever the maker is permitted, as against a bona fide holder for value, to establish a defense based upon equities between the original parties. But* such is not the test prescribed by the statute defining the jurisdiction of the circuit courts of the United States. If a promissory note is expressed in words of negotiability, the right of the holder of the legal title to invoke the jurisdiction of the proper circuit court of the United States is not affected by the citizenship of any prior holder, or by the circumstance that the party sued asserts, or is able to make out, a valid defense to the action.

The assignments of error present another question that deserves consideration. The constitution of Iowa provides that “every act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title." The title of the statute under which those bonds were issued is, "An act to authorize independent schooldistricts to borrow money and issue bonds therefor for the purpose of erecting and completing school-houses, legalizing bonds heretofore issued, and

« ΠροηγούμενηΣυνέχεια »