Catron v. LaFayette County

• Decision Date: 09 November 1891
• Parties: Catron v. LaFayette County, Appellant
• Court: Missouri Supreme Court

17 S.W. 577

106 Mo. 659

Catron v. LaFayette County, Appellant

Supreme Court of Missouri, First Division

November 9, 1891

Appeal from Jackson Circuit Court. -- Hon. T. A. Gill, Judge.

Affirmed.

Wallace & Chiles and J. S. Blackwell for appellant.

(1) The court erred in awarding a change of venue to Jackson county. The change should have been to some county in the same circuit. Potter v. Adams, 24 Mo. 159; State v Knight, 61 Mo. 373; Taylor v. Railroad, 68 Mo 397; Squires v. City, 89 Mo. 226; Dowling v Allen, 88 Mo. 299; State v. Gabriel, 88 Mo. 631. (2) The petition did not state a cause of action. R. S. 1879, sec. 3519; G. S. 1865, ch. 36, p. 221; Wolcott v. Lawrence Co., 26 Mo. 272; Sturgeon v. Hampton, 88 Mo. 213; Bryson v. Johnson Co., 100 Mo. 76. (3) "A petition in an action on county bonds or coupons should show the authority for their issuance." Donaldson v. Butler Co., 98 Mo. 163. "The counties of this state have no inherent or general power to issue bonds." Donaldson v. Butler Co., 98 Mo. 166; Cook v. Putnam Co., 70 Mo. 668. (4) "It would seem quite obvious that every essential element of such power must be plainly set forth in the pleading which seeks a recovery on paper, the necessary result of the exercise of such special and limited power, or else such pleading must needs be confessedly and radically defective." Weil v. Greene Co., 69 Mo. 281; R. S. 1865, ch. 36, p. 221, sec. 1; R. S. 1865, ch. 37, p. 225, sec. 3; Johnson Co. v. Wood, 84 Mo. 515; Reardon v. St. Louis Co., 36 Mo. 555; Steines v. Franklin Co., 48 Mo. 167; Smallwood v. LaFayette Co., 75 Mo. 450; Ruggles v. Collier, 43 Mo. 353; Ray Co. v. Bently, 49 Mo. 236. A county is a public corporation. State ex rel. v. Court, 34 Mo. 570; State ex rel. v. Harris, 96 Mo. 29, 37; Dallas Co. v. Mackensie, 94 U.S. 663; Spears v. Bond, 79 Mo. 467; 1 R. S. 1879, sec. 3519; R. S. 1889, sec. 2077. (5) The county court of LaFayette county could only "issue" bonds "on behalf" of such county by appointing an agent by its order of record, to execute such bonds "on behalf of such county," and especially for erecting a county jail. G. S. 1865, ch. 37, p. 225, sec. 3; Dennison v. St. Louis Co., 33 Mo. 168; Piffey v. Jefferson Co., 57 Mo. 69; Johnson v. School Dist., 67 Mo. 139; Folger v. Heidel, 60 Mo. 286; Maupin v. Franklin Co., 67 Mo. 327. (6) The plaintiff was bound at his peril to inquire as to the extent of the power or want of power of the county court and its agents to execute bonds on behalf of the county. 1 Dillon on Mun. Corp. [2 Ed.] 372-3; Argenti v. San Francisco, 16 Cal. 282; Wolcott v. Lawrence Co., 26 Mo. 275; Reardon v. St. Louis Co., 36 Mo. 560; Sturgeon v. Hampton, 88 Mo. 213; Steines v. Franklin Co., 48 Mo. 186. (7) The bonds sued on were illegal and void in their inception and could not be ratified. Kansas Citg v. Railroad, 81 Mo. 290; Taylor v. Township, 25 Iowa 451; Johnson v. School Dist., 67 Mo. 321.

Wash Adams for respondent.

(1) The county court of LaFayette county had authority to issue the bonds sued on. G. S. 1865, p. 221. (2) The bonds issued were negotiable securities, and are governed by the principles applicable to commercial paper. Carpenter v. Lathrop, 51 Mo. 492; Steines v. Franklin Co., 48 Mo. 186; State v. Saline Co., 48 Mo. 390; Bartell v. Schuyler Co., 44 Mo. 197; Flogg v. Palmyra, 33 Mo. 440; Daniel on Neg. Inst., sec. 1502; Dillon on Munic. Corp., sec. 486. (3) Under its power the county court could issue and sell the bonds in advance to raise money to build a jail. The only question that concerns the purchaser of such a bond is, whether the court had power to issue it. From this it follows that no irregularity, fraud or misconduct of the county officials will be allowed to defeat such bonds when in the hands of an innocent purchaser for value. Lexington v. Butler, 14 Wall. 282; Marshall Co. v. Schenck, 5 Wall. 772; Gelpcke v. Dubuque, 1 Wall. 175; Hackett v. Ottowa, 9 Otto, 362; Belo v. Commissioners, 76 N.C. 492; San Antonio v. Lane, 32 Tex. 405; Lynchburg v. Slaughter, 75 Va. 57; Greeley v. Jacksonville, 17 Fla. 174; Rouede v. Jersey City, 18 F. 719. (4) The overissue did not invalidate the bonds previously issued. Daviess Co. v. Dickinson, 117 U.S. 657; Stockdale v. District, 47 Mich. 226; Bank v. Hicher, 8 S. & M. 151; McPherson v. Foster, 43 Ia. 48; Story on Agency, sec. 166. (5) The insertion of the ten-per-cent. interest in the bonds did not invalidate them. The bonds are in proper form. The president and clerk of the county court were the proper persons to sign them. Blair v. Cuming Co., 111 U.S. 368; Ralls Co. v. Douglass, 15 Otto, 728; Neely v. Yorkville, 10 S.C. 141; Walnut v. Wade, 103 U.S. 683; Bank v. Statesville, 84 N.C. 169; Town of Windsor v. Hallett, 97 Ill. 204. (6) When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites to its validity were complied with. Addis v. Graham, 88 Mo. 197; Flagg v. Palmyra, 33 Mo. 450; 19 Ind. 451. (7) The statute requiring a scroll to be expressly denominated a seal has no application to corporate or official seals. Dale v. Wright, 57 Mo. 110; City of Kansas v. Railroad, 77 Mo. 180. (8) The point that Catron is not the real party in interest in respect of the first two counts is not well taken. The form of indorsement makes these bonds payable to John Catron. He alone is the proper party to sue. The suit could not be maintained by Mary Catron. Jeffries v. McClean's Ex'r, 12 Mo. 541; Harney v. Dutcher, 15 Mo. 89; Brick Co. v. Cook, 44 Mo. 29; Webb v. Morgan, 14 Mo. 428; Beattie v. Lett, 28 Mo. 596; Atchison v. Railroad, 80 Mo. 214. (9) The objection that the road bond in the sixth count is not a coupon bond is without merit. Bartlett v. Schuyler Co., 44 Mo. 197. (10) The contention that the change of venue should not have been awarded to a county outside of the circuit finds no support in the statute.

OPINION

Brace, J.

This is an action on six money bonds of the county of LaFayette, executed under the seal and signed by the president of the county court of said county and attested by its clerk, five of them dated January 3, 1867, each for the sum of $ 500 and each payable twelve months after date, with interest from date at the rate of ten per cent. per annum (compound), to the order of Thomas M. Hackett, and by him assigned by indorsement for value, before maturity, to the plaintiff; and one dated April 6, 1869, for $ 100, payable twelve months after date to the order of Andrew O'Malley, with interest from date at the rate of ten per cent. per annum (compound), and by him assigned by indorsement for value, before maturity, to plaintiff. The suit was instituted in the circuit court of LaFayette county on the twenty-sixth of December, 1884, taken thence, upon application of plaintiff for a change of venue, to the circuit court of Ray county, and thence, upon the application of defendant, to the circuit court of Jackson county, in which it was tried by the court, without the aid of a jury, on the petition, answer and reply, defendant's demurrer to the petition and his objections to the introduction of any evidence having been overruled. On the trial the defendant asked for seventeen declarations of law, all of which the court refused; the plaintiff asked none.

The court found for the plaintiff on each count of the petition, and rendered judgment in his favor for the amount of each and all of said bonds, with interest according to their tenor, less the amount of credits for interest paid before suit. From which judgment the defendant appeals. The errors insisted upon for reversal will be noticed in their order.

I. In the circuit court of Jackson county the defendant moved that the cause be remanded to the circuit court of Ray county, for the reason that these two courts not being in the same judicial circuit, the latter had no power to award a change of venue to the former. When the change of venue in this case was awarded, the statute provided that "a change of venue may be awarded in any civil suit to any court of record * * *." R. S. 1879, sec. 3729. The only limitation being that it must be sent to the court in "some county where the cause or causes complained of do not exist, as convenient as may be to the opposite party." R. S., sec. 3733. A change in the law in this respect was made in the last revision. R. S. 1889, sec. 2262. But the act in force when the change of venue in this case was granted did not require the cause to be sent to some other county "in the same or an adjoining circuit" as now, and we have no power to read the amendment into that law.

II. By answering the petition, defendant waived all objections to its sufficiency except one, i. e., "that it failed to state a cause of action," and this objection only could be urged as ground for refusing to permit any evidence to be introduced in its support. The several bonds sued on were filed with the petition, they are each declared on in apt terms in separate counts as negotiable instruments, duly issued by the county court of said county under its seal; the first "five for the purpose of erecting a good and sufficient jail in the city of Lexington, then the established seat of justice of said county," and the sixth "for the purpose of causing the Wellington and Lexington road, a public road in said county, to be improved by grading, throwing up of embankments and building culverts and bridges so as to make said road secure, permanent and good." For these purposes the law authorized the issue of county bonds. G. S. 1865, ch. 36, p. 221, sec. 1; Sess. Acts, 1868, p. 150, secs. 1, 2, 7; p. 42, secs. 1, 2.

In pleading, a distinction is necessarily made in declaring upon negotiable securities issued by a county of this state and individuals;...