City of Abilene v. Cornell University

• Decision Date: 20 October 1902
• Docket Number: 1,662.
• Citation: 118 F. 379
• Parties: CITY OF ABILENE v. CORNELL UNIVERSITY.
• Court: U.S. Court of Appeals — Eighth Circuit

118 F. 379

CITY OF ABILENE v. CORNELL UNIVERSITY.

No. 1,662.

United States Court of Appeals, Eighth Circuit.

October 20, 1902

C. F Mead and J. R. Young, for plaintiff in error.

Charles B. Wood and Horace S. Oakley, for defendant in error.

Before SANBORN and THAYER, Circuit Judges, and LOCHREN, District judge.

THAYER Circuit Judge.

This action was instituted by Cornell University, the defendant in error, against the city of Abilene, Kan., the plaintiff in error, on certain bonds, 10 in number, which were executed and delivered by the defendant city on July 2, 1888, and became due and payable 10 years thereafter. The plaintiff claimed to be an innocent purchaser of the bonds, for value and before maturity, from H. C. Speer, to whom 'or bearer' the bonds were originally made payable. The answer which was interposed by the defendant city contained a denial of certain allegations of the complaint and certain special defenses, among others a plea that the matter in issue was res judicata.

The latter plea averred, in substance, that in the year 1895 one John W. Edminson brought an action against the defendant city in the district court of Dickinson county, Kan., founded upon 60 coupons attached to the very bonds now in suit; that to said action, so brought in the state court, the defendant city appeared and pleaded the invalidity of the bonds for the same reasons that are assigned in other special defenses to the present action; that said former action was duly tried and determined in the state court, and resulted in an adjudication that the bonds in suit were null and void, and that such judgment remained in full force and effect and had become final prior to the commencement of the present action. The plea further averred that at the time Edminson brought said former action the present plaintiff, Cornell University was the real and true owner of the coupons sued upon and of the bonds to which they were attached; that said bonds and the coupons so sued upon by said Edminson were delivered by Cornell University to N.W. Harris or N.W. Harris & Company with instructions to collect the same; that they were assigned by said Harris to the said Edminson, without consideration, for the sole purpose of bringing a suit thereon in the name of Edminson; and that Cornell University remained the actual owner and holder thereof during all the time said former action was pending and at the time the judgment therein was rendered, and that by reason of such facts the right of the plaintiff to maintain the present action had become res judicata.

The reply to this plea was a general denial, no demurrer thereto having at any time been interposed. A stipulation was subsequently filed waiving a jury, and a further stipulation admitting that the coupons described in the suit of Edminson against the city of Abilene were coupons belonging to the 10 bonds sued upon in the present action. When the case was reached for trial the defendant city offered in evidence the 'case made' in Edminson against the city of Abilene the same being a complete record of all the pleadings and evidence in that case as made up for the purpose of obtaining a review case. When this offer was made the record now before this court recites that it was 'agreed in open court by the plaintiff and the defendant that all the evidence and testimony contained in said 'case made' shall be treated and regarded as having been offered in evidence in this trial to the...