Board of Com'rs of Kearney County v. McMaster

• Decision Date: 06 May 1895
• Docket Number: 538.
• Citation: 68 F. 177
• Parties: BOARD OF COM'RS OF KEARNEY COUNTY v. McMASTER.
• Court: U.S. Court of Appeals — Eighth Circuit

68 F. 177

BOARD OF COM'RS OF KEARNEY COUNTY v. McMASTER.

No. 538.

United States Court of Appeals, Eighth Circuit.

May 6, 1895

Samuel R. Peters (M. G. Kelso, Joseph W. Ady, and John C. Nicholson on the brief), for plaintiff in error.

Frederic D. Fuller filed brief for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge.

This was a suit by J. S. McMaster, the defendant in error, against the plaintiff in error, the board of county commissioners of Kearney county, Kan., on 19 county warrants theretofore issued by the county which had been purchased by, and had been assigned to, McMaster by the original payees. The case was tried before the court on a written stipulation waiving a jury, and the finding by the circuit court in favor of the plaintiff was general, and not special. For this reason no errors assigned relative to the giving or refusal of instructions, which were asked with a view of controlling the general finding, are before us for review. Search Co. v Thompson, 13 C.C.A. 349, 66 F. 92, recently decided by this court, and cases there cited.

The first question presented by the record which is open for review is whether the circuit court had jurisdiction of the case. The petition was demurred to on the ground that 'the court had no jurisdiction of the subject-matter of the action,' and the demurrer was overruled. It goes without saying that a demurrer based on such ground is not waived by subsequently pleading to the merits, wherefore it becomes necessary to decide whether this point was well taken. The petition showed that the plaintiff was a citizen and resident of the state of New York, and that the defendant was a municipal corporation created by the state of Kansas. The several causes of action sued upon were county warrants issued by the county, which had been assigned to the plaintiff, but they were made payable to the several payees therein named or bearer. Under these circumstances, it matters not, we think, whether the payees named in the warrants were or were not citizens of Kansas at the date of the several assignments. It has been held that, under the provisions of the act of March 3, 1887, as amended by the act of August 13, 1888, to correct the enrollment of the act of March 3, 1887 (25 Stat. 433, c. 866), the federal courts have jurisdiction of a suit by an assignee of such choses in action against the county issuing the same, when the assignee is a nonresident of the state; and this court has heretofore acted on the assumption, without, however, expressly deciding the point, that such cases are properly within the jurisdiction of the national courts under the act of March 3, 1887, supra. Aylesworth v. Gratiot Co., 43 F. 350, 355. See, also, Wilson v. Knox Co. Id. 481; Holmes v. Goldsmith, 147 U.S. 150, 156, 13 Sup.Ct. 288; Thompson v. Searcy Co., 12 U.S.App. 618, 6 C.C.A. 674, and 57 F. 1030; Board v. Sherwood, 11 C.C.A. 507, 64 F. 103; Capital Bank of St. Paul v. School Dist. No. 26, 11 C.C.A. 514, 63 F. 938. It must be held, therefore, that the demurrer to the petition was properly overruled.

Another question, which is also presented for review by the record is whether the circuit court erred in sustaining a demurrer to portions of the defendant's answer. The demurrer in question was addressed to the first, third, and fourth paragraphs of the pleading, each of which stated a separate defense, and it appears to have been sustained as to all of said defenses, but, by a stipulation filed by counsel before the trial, it was agreed, in substance, that the defenses stated in the answer, other than the defense pleaded in the fourth paragraph thereof, should 'remain as a part of said answer, and that...