Bingham County v. First Nat. Bank, 889.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Citation: 122 F. 16
• Docket Number: 889.
• Parties: BINGHAM COUNTY v. FIRST NAT. BANK OF OGDEN, UTAH.
• Decision Date: 09 March 1903

122 F. 16

BINGHAM COUNTY
v.
FIRST NAT. BANK OF OGDEN, UTAH.

No. 889.

United States Court of Appeals, Ninth Circuit.

March 9, 1903

James M. Stevens and F. S. Dietrich, for plaintiff in error.

David Evans and A. G. Horn, for defendant in error.

ROSS, Circuit Judge.

The defendant in error was the plaintiff in the court below in an action against Bingham county, a municipal corporation of the state of Idaho, to recover a money judgment for the principal and interest alleged to be due on certain warrants theretofore drawn on the general fund of the county, and of which the plaintiff alleged it was the owner. The complaint, as amended, set out the number, date, and amount of each of the warrants sued on, to whom issued, on what fund drawn, the date each was presented to the treasurer of the county for payment, and the fact and date of the treasurer's refusal of payment. The complaint contains no allegation concerning the basis of any of the warrants; it being based solely upon the alleged ownership by the plaintiff, at the time of the commencement of the action, of each of the warrants, upon which it is alleged there is due, in the aggregate, the principal sum of $7,238.09, with interest at the rate of 7 per cent. per annum from the date of their respective presentations. The amended complaint contains the further allegations:

'That since the 1st day of August, 1899, there has been ample money in the county treasury of the defendant, and in the county general fund, to pay plaintiff's said warrants, and that the same has been applied in payment of warrants of a later date and registration than the warrants of the plaintiff herein set out. Also that ample time has elapsed since the issuance of said warrants to raise money by legal and proper methods to fully pay and discharge said warrants, but that said defendant wrongfully refuses to pay said warrants, and has heretofore, by a resolution of its board of county commissioners, directed the treasurer of said defendant to refuse payment of any of said warrants when presented for payment; and, on information and belief, plaintiff alleges that said warrants, between the 1st day of August, 1899, and January 10, 1901, were or should have been duly called for payment, pursuant to law, by said treasurer of said county, and that on January 10, 1901, said warrants were presented for payment to said treasurer, and payment was then and there refused by him.' [122 F. 17] A demurrer to the complaint as amended having been overruled by the court below, the defendant county filed an answer, in which it admitted that, within the period stated in the complaint--

'Its auditor delivered to the various persons named in said third paragraph (of the complaint), as payees, what, upon the printed forms, were designated as county warrants; that said printed forms were and are substantially as follows, to wit:

"County Warrant

"No. . . .

Blackfoot, Idaho, 189 . . . .

''The Treasurer of Bingham County, Idaho, will pay . . ., or bearer, . . . dollars, for . . ., and charge to account of county general fund. "$ . . .

. . ., "Auditor.'

'That prior to the delivery to the said payees the said printed forms were signed by defendant's auditor, numbered and dated substantially as alleged in said amended complaint, and the names of payees and the amounts were entered substantially as alleged.'

The answer denies that either of the warrants so issued was delivered in accordance with law, or that there is anything due from the defendant on any of them, and alleges that not one of them specifies or in any manner indicates when the liability for which it was drawn accrued, nor does any one of them recite that it was issued for value received, and that 'most of them insufficiently specify the liability for which they were drawn,' and that--

'No one of the so-called warrants No. 487, dated July 13, 1893, No. 491, dated July 13, 1893, No. 55, dated January 12, 1894, No. 70, dated January 12, 1894, and No. 86, dated January 20, 1896, was issued for a claim or demand which was chargeable against defendant, or which was ever legally examined, allowed, or ordered paid by defendant's board of commissioners; that no one of the so-called warrants No. 491, dated July 13, 1893, No. 61, dated January 19, 1895, and No. 41, dated January 20, 1896, was issued for a claim which was ever legally examined, allowed, or ordered paid by defendant's board of commissioners, or for which an account properly made out, or verified in any manner, was ever presented to said board.'

The answer denies that any of the warrants sued on could have been legally paid by the defendant, or that any money could have been legally raised for their payment. And for a separate defense the defendant alleges that, at all the times mentioned in the amended complaint and in the defendant's answer thereto, the banking firm of C. Bunting & Co., the payee of certain of the warrants sued on, was a corporation doing a general banking business in the town of Blackfoot, in the defendant county, and transacted business at no other place; that on or about the 15th day of February, 1897, in an action then pending in the district court of the Fifth Judicial District of Idaho, in and for Bingham county, wherein the First National Bank of Pocatello was plaintiff, and Bunting & Co. defendant, one Thum was duly appointed receiver of the defendant company, and immediately qualified as such, and entered upon the discharge of his duties, and ever since has remained the receiver of that company; that at the time of such appointment the firm of Bunting & Co. was wholly insolvent, and has remained so ever since; that those of the warrants sued on numbered, respectively, 45, 522, 544, 3, 9, 25, [122 F. 18] 32, 41, 61, 62, 63, 28, 34, 35, 42, 44, 200, and 202, were originally delivered to Bunting & Co., and were its property, and that all of the others of the warrants sued on were transferred and delivered to that company soon after their several dates of issue; that for more than a year immediately preceding the appointment of the receiver mentioned, and at the time of such appointment, and for a long time thereafter, Bunting & Co. was the owner of all of the warrants sued on, and of any indebtedness evidenced thereby, and that neither Bunting & Co. nor the receiver ever voluntarily parted with the title thereto, and that such title was never divested at all until after the 1st day of July, 1897, and then only by process of law; that at all of the said times the firm of Bunting & Co. was indebted to the defendant county in an amount of money in excess of the aggregate amount of the face value, including interest, of the warrants sued on, which indebtedness from Bunting & Co. at the time of the appointment of the receiver exceeded $40,000, and has ever since been in the excess of $20,000; that the said indebtedness arose by reason of the deposit with Bunting & Co. by the sheriff, treasurer, and tax collector of the defendant county, from time to time, of moneys of the defendant, upon the agreement by that firm to pay over the same to the defendant at any time upon demand; that Bunting & Co. failed and refused to pay over the moneys so deposited, although frequently requested so to do, but, on the contrary, commingled the defendant's moneys so received with its own funds and general deposits, and appropriated the same to its own use, but at all times acknowledged its indebtedness to the defendant county, and the amount thereof; that said indebtedness of Bunting & Co. to the defendant county has at all times--

'Been a definite, mature, liquidated, and unsecured demand in favor of this defendant and against said C. Bunting & Co., the owner of said so-called warrants, and has at all times existed under such circumstances that if the said C. Bunting & Co. or its receiver had at any time brought an action against this defendant upon any or all of said alleged warrants, or the alleged indebtedness evidenced thereby, this defendant could have set up as a counterclaim against said demand its said claim or demand against said C. Bunting & Co., and this defendant could have thus fully compensated and set...