Board of Com'rs of Hamilton County v. Sherwood, 379.

• Decision Date: 08 October 1894
• Docket Number: 379.
• Citation: 64 F. 103
• Parties: BOARD OF COM'RS OF HAMILTON COUNTY v. SHERWOOD.
• Court: U.S. Court of Appeals — Eighth Circuit

64 F. 103

BOARD OF COM'RS OF HAMILTON COUNTY v. SHERWOOD.

No. 379.

United States Court of Appeals, Eighth Circuit.

October 8, 1894

George Getty (C. N. Sterry, on the brief), for plaintiff in error.

Almerin Gillett, for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge.

This was a suit on 63 county warrants that were issued for various purposes by the order of the board of county commissioners of the county of Hamilton, state of Kansas, during the years 1886 and 1887, and that had been duly assigned to James K. O Sherwood, the defendant in error, who was the plaintiff in the circuit court. The petition contained 63 counts, each warrant having been declared upon separately. A written stipulation was filed, waiving a jury, and the cause was referred to a referee for trial, who subsequently filed a written report containing his findings of fact and conclusions of law. The record shows that the circuit court 'adopted each finding of fact made by the referee as findings of fact made by the court,' and in view of that statement we have treated the case precisely as if it came to this court on a special finding of facts made by the trial court. Boogher v Insurance Co., 103 U.S. 90. The questions open for review on the writ of error that has been sued out are those and none other, which might have been reviewed if the trial had actually taken place before the court under a written stipulation waiving a jury, and the court had made a special finding of the facts.

The statutes of Kansas, like the statutes of many other states, provide, in substance, that county treasurers shall pay warrants presented to them for payment, and shall mark the said 'Paid,' if there is money then in their possession sufficient to pay the same, and if not, that they shall certify that fact on the back of the warrants presented, with the date of presentation, and that they shall also keep in a book a record of all warrants presented, showing the number, date, and amount of the warrant, and when presented and to whom payable, and that all warrants shall be paid in the order of their presentation, when funds come to their hands. Gen. St. Kan. 1889, c. 25, Sec. 69.

The first point urged upon our attention is that a demurrer interposed to the petition on the ground that it did not state a cause of action should have been sustained, because there was no averment found in the petition that when the suit was commenced the county treasurer had money sufficient to pay the warrants, or that a sufficient time had elapsed for the collection of money wherewith to pay them. We need not stop to determine the merits of this contention because the record shows that the county did not stand upon its demurrer when it was overruled, but answered the petition and entered into a long, expensive, and tedious trial, whereby it waived the point raised by the demurrer, even if it had merit. We have once or twice decided, in accordance with the rule which now generally prevails, that a demurrer will ordinarily be waived by answering to the merits. Where it is apparent that the transaction out of which a cause of action is supposed to have originated could not give to a meritorious cause of action, the rule is, of course, different; but a mere incompleteness or uncertainty of averment-- a failure to state some fact which should have been stated, to make a technically good declaration or complaint--will be of no avail in this court when it appears that after a demurrer was overruled the party answered to the merits, and went to trial on issues raised by his answer. Rush v. Newman, 7 C.C.A. 136, 139, 58 F. 158, and cases there cited; City of Plankinton v. Gray (decided at this term) 63 F. 415, and cases therein cited. In the present case the plaintiff in error attempted to save the same point last mentioned, after his demurrer had been overruled, and after he had answered, by an oral objection made before the referee 'to the taking of any evidence for the reason that the petition failed to state facts sufficient to constitute a cause of action or causes of action;' but even if the objection to the petition had not been already waived by answering over, as already decided, this latter objection was too vague and general to be of any avail. It did not advise either the referee or the opposite party of the particular defect in the petition which rendered it insufficient. It was simply a snare laid in the pathway of the unwary. We refer to what was said on that subject in Insurance Co. v. Miller, 8 C.C.A. 612, 60 F. 254.

An objection is made to a large number of the warrants in suit upon the ground that the claims or accounts upon which they were issued were not sufficiently itemized to satisfy the requirements of the Kansas statute. The statute provides, in substance, that no account shall be allowed by the board of county commissioners 'unless the same shall be made out in separate items and the nature of each item stated,' etc. Gen. St. Kan. 1889, c. 25, Sec. 28. The precise contention is that many of the claims when presented to the board of county commissioners for allowance were not itemized, or were not sufficiently itemized to conform to the statute, and that the warrants issued thereon are for that reason utterly void, and of no effect. The point cannot be considered, for the following reasons: We cannot determine whether the accounts were sufficiently or insufficiently itemized without inspecting them, and considering their exact form and contents. The special findings made by the trial court do not incorporate the accounts or 'vouchers,' as they are termed, into the findings, and do not attempt to state their contents. These so-termed 'vouchers' are merely the evidence on which the special findings are based, and we are not required to consider the evidence, nor could we do so if we so desired. It is our function to decide whether upon the findings as made, accepting them as conclusive, the conclusion of the court was right. Walker v. Miller, 8 C.C.A. 331, 59 F. 869; Burr v. Navigation Co., 1 Wall. 99, 102. The findings generally recite that the account on which the warrant therein referred to was issued 'was itemized' or 'duly itemized.' In a few instances the finding is that the voucher was not 'very definitely itemized,' or language to that effect; but even in such cases the finding, as a whole, shows that the court concluded that the various vouchers had been sufficiently itemized, and we cannot review that conclusion of the trial court, the vouchers not having been incorporated into the findings so as to bring them before us for examination.

Another subject of contention is the nonverification of some of the accounts or vouchers on which certain of the warrants were issued. The special findings do show that a few of the vouchers were not verified although the statute heretofore cited (section 28, c. 25, Gen. St. Kan. 1889) directs that they 'shall be verified by affidavit setting forth that the same is just correct and remains due and unpaid. ' The circuit court appears to have held that the provision is directory, and that, in a suit on a warrant which is issued on an unverified claim, there may be a recovery notwithstanding the defect in the voucher. This ruling is assigned for error. It is no doubt the law that if an auditing board, like the board of county commissioners in Kansas, declines to audit a demand and to issue a warrant because the demand is not verified, its action will not be disturbed on an appeal from the board's decision, where such an appeal is allowed, or in a mandamus suit brought to compel it to audit the claim even though the claim is shown in such mandamus proceeding to be just and correct. Such was the substance of the ruling in some of the cases cited by counsel for the plaintiff in error. Christie v. Sonoma Co., 60 Cal. 164; McCormick v. Tuolumne Co., 37 Cal. 257; Board v. Tomlinson, 9 Kan. 167; Ryce v. Mitchell Co. (Iowa) 21 N.W. 771. But it is a very different question whether a warrant is so utterly void that it will not even furnish the basis for a suit, no matter how just the claim may be, because the claim on which it was based, through inadvertence or otherwise, was not verified when presented to the auditing board. In considering the question whether a warrant is so utterly void, for want of verification, that it will not furnish the basis for a suit, we think that it will be more profitable to consider the nature and functions of a county warrant than to review the numerous cases in which courts have considered whether particular statutes were directory or mandatory. It is quite generally agreed that county warrants are not negotiable instruments, in such sense that a transfer of the same for value cuts off equities of defense which exist as between the original parties. They are orders directing the payment of a claim which has passed the scrutiny of the auditing board. They are therefore prima facie evidence of an indebtedness, like a written admission of a debt made by a private individual; but they are by no means conclusive evidence of an indebtedness, and do not bar a reinvestigation of the merits of the claim on which the warrant is founded when a suit is brought on the warrant. Wall v. County of Monroe, 103 U.S. 74; Thompson v. Searcy Co., 6 C.C.A. 674, 57 F. 1030; ...