City of Harper, Kan. v. Daniels

• Decision Date: 07 January 1914
• Docket Number: 3784.
• Citation: 211 F. 57
• Parties: CITY OF HARPER, KAN., v. DANIELS.
• Court: U.S. Court of Appeals — Eighth Circuit

211 F. 57

CITY OF HARPER, KAN., v. DANIELS.

No. 3784.

United States Court of Appeals, Eighth Circuit.

January 7, 1914

E. C Wilcox, of Anthony, Kan. (H. C. Sluss, of Wichita, Kan., on the brief), for plaintiff in error.

Charles Blood Smith, of Topeka, Kan. (Samuel Barnum, of Topeka, Kan on the brief), for defendant in error.

Before HOOK and SMITH, Circuit Judges, and VAN VALKENBURGH, District judge.

VAN VALKENBURGH, District Judge.

Defendant in error, plaintiff below, was the owner of a number of city warrants issued by plaintiff in error, defendant below, a city of the third class, in 1891 and 1892; these warrants were all duly presented to the city treasurer within less than five years after their issue and duly indorsed, as required by law, 'Not paid for want of funds. ' They were payable only out of the general revenue fund of the city. Suit was brought to enforce collection, and on the 8th day of March, 1897, judgment was rendered in favor of plaintiff, and against defendant, in the sum of $14,573.23.

This judgment was not paid, and June 18, 1907, this action was brought to revive it. The statutes of Kansas then provided:

'If execution shall not be sued out within five years from the date of any judgment that now is or may hereafter be rendered in any court of record in this state, or if five years shall have intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor. ' Section 4895, General Statutes of Kansas 1901.

'If a judgment become dormant, it may be revived in the same manner as is prescribed for reviving actions before judgment. ' Section 4890, General Statutes of Kansas 1901.

'An order to revive an action against the representatives or successor of a defendant shall not be made without the consent of such representatives or successor, unless in one year from the time it could have been first made. ' Section 4883, General Statutes of Kansas 1901.

In Kansas, judgments against municipalities are paid by taxation, and the levy and collection of taxes may be enforced by mandamus. Such a mandamus is equivalent to an execution against a private person, within the meaning of the statutes relating to the life of judgments. Between March 8, 1897, the date of the judgment, and June 18, 1907, the date of filing this suit, a period of more than ten years, no writ of mandamus had issued, nor had application been made to revive the judgment sued on.

The situation, so far as it affects this phase of the controversy, is thus stated in the second amended petition:

'That in the year of the rendition of said judgment the said city of Harper made a levy of seven mills for general purposes, but failed to make any provision in said levy towards the creation of a fund to pay said warrants and failed and neglected so to do until the year 1900, although frequently demanded to do the same by said plaintiff, but in the year 1900, as aforesaid, the said city of Harper, recognizing the validity of said indebtedness as evidenced by and liquidated in said judgment in accordance with law in that behalf, passed its certain ordinance for a two-mill levy of taxes for the purpose of making a payment on said judgment. That the said defendant since the year 1900 has failed, neglected, and refused to make any levy for the purpose of collecting or paying any moneys into its general fund.

'That in the years 1901, 1902, and 1903, the said city of Harper passed ordinances making levy for said judgment, but since the year 1904 has failed, neglected, and refused to make any levy for the purpose of raising a fund to pay said warrants or judgment. That the levies so as aforesaid made for the years 1900, 1901, 1902, and 1903 were duly indorsed upon the tax books in conformity to said ordinances and the same were duly collected, and the fund realized therefrom were paid over and deposited in the treasury of the city of Harper.

'Thereafter, and from time to time as the said taxes were so collected and deposited in the city treasury, the said city of Harper, through its proper officers, paid upon said indebtedness, liquidated and evidenced by said judgment, various amounts as follows:

On February 26, 1901 .. $133 80

On January 28, 1902 .... 279 46

On July 25, 1902 ........ 74 29

On February 27, 1903 ... 221 72

On April 8, 1904 ....... 395 98

'That said various sums were duly accepted and receipted for by said plaintiff as part payment of said indebtedness and duly credited thereon, as per the order and direction of the said defendant, the city of Harper.

'That within the past five years at various times the said city of Harper, through its duly authorized officers and agents, duly acknowledged in writing the existence of said debt upon said warrants as evidenced by said judgment and its present and continuing obligation to pay and discharge the same to this plaintiff.

'That the foregoing payments so as aforesaid made comprise all the fruits and return from said levies and collection of taxes between the years 1900 and 1905, inclusive, and said levies and collection of taxes were advisedly and purposely made to create a fund in the treasury as required by law to be applied towards the payment of said judgment and the indebtedness evidenced by it, so far as it would go.

'But said defendant (plaintiff) says that at no time since the presentation of said warrants and their indorsement as aforesaid, 'Not paid for want of funds,' has there been levied and collected and in the treasury of said city of Harper any sums of money whatsoever for the payment of said warrants or the judgment evidencing the same, save and except the said sums of money above set forth, which, as aforesaid, were paid over to this plaintiff to be applied upon this indebtedness and which have been applied as of the above dates mentioned.

'Said plaintiff further says that if, beginning with the year 1897, the year said judgment was rendered, the full ten-mill levy, which it was in the power of the said defendant, the city of Harper, to tax for general purposes, had been levied for the specific and exclusive purpose of being placed in the treasury as a fund to be applied upon the payment of these warrants and upon the judgment liquidating the same, and the same was duly extended and made a charge upon the full assessed valuation of the city of Harper, and the same was fully collected without delinquency upon the part of the taxpayers, it would produce a fund, which, after the payment of interest, would be insufficient to pay and satisfy more than 20 per cent. of said judgment or of said warrants.'

To this petition defendant interposed a demurrer setting up the bar of the statute of limitations. The demurrer was overruled, and an exception saved; thereafter defendant answered over, a jury was waived, and the case was submitted to the court upon pleadings and evidence. Judgment was rendered in favor of plaintiff in the sum of $27,922.30. Defendant was given 120 days within which to file its bill of exceptions. The trial court filed neither findings of fact nor conclusions of law, but made only a general finding in the nature of a general verdict. The bill of exceptions was not filed within the time granted, and not until the succeeding term of court; no extension of time for the filing was ever agreed upon, asked, or granted; nor was the court's control over the record preserved by the pendency of a motion for new trial or otherwise. Under these circumstances, the bill of exceptions cannot be considered by us. United States v. Carr et al., 10 C.C.A. 80, 61 F. 802; Missouri, Kansas & T. Ry. Co. v. Russell, 9 C.C.A. 108, 60 F. 501; Jennings v. Phil., Balt. & Wash. Ry. Co., 218 U.S. 255, 31 Sup.Ct. 1, 54 L.Ed. 1031; Morse v. Anderson, 150 U.S. 156, 14 Sup.Ct. 43, 37 L.Ed. 1037; Michigan Insurance Bank v. Eldred, 143 U.S. 293, 12 Sup.Ct. 450, 36 L.Ed. 162; Muller v. Ehlers, 91 U.S. 249, 23 L.Ed. 319. This leaves but one of the assignments of error subject to review, viz.:

'The court erred in overruling the demurrer of the city of Harper to the plaintiff's second amended petition.'

If the petition, as challenged by the demurrer, is fatally defective in substance, and clearly shows that upon the case as stated the plaintiff cannot recover, the judgment must be reversed, otherwise it should be affirmed. Teal v. Walker, 111 U.S. 242, 4 Sup.Ct. 420, 28 L.Ed. 415; Hudson Canal Co. v. Penna. Coal Co., 8 Wall. 276-287, 19 L.Ed. 349; Rush v. Newman, 7 C.C.A. 136, 58 F. 158-161.

The issue presented is whether the suit was barred by the statute of limitations, which this court has expressly ruled applies to judgments against municipalities. Dempsey v. Township of Oswego, 2 C.C.A. 110, 51 F. 97. Under section 5616, General Statutes of Kansas 1909, the running of that statute may be arrested in the following manner:

'In any case founded on contract, when any part of the principal or interest shall have been paid, or an acknowledgment of the existing liability, debt, or claim, or any promise to pay the same, shall have been made, an action may be brought in such case within the period prescribed for the same, after such payment, acknowledgment, or promise; but such acknowledgment or promise must be in writing, signed by the party to be charged thereby.'

However the Supreme Court of Kansas, in construing this section, has held that a judgment is not a contract within the meaning of its terms (Burnes et al. v. Simpson, 9 Kan. 658); and so it has been held under similar statutes in Willard v. Wood, 164 U.S. 502-522, 17 Sup.Ct. 176, 41 L.Ed. 531; McAleer v. Clay County (C.C.) 38...