Dinet v. Rapid City, S.D.

• Citation: 222 F. 497
• Decision Date: 10 March 1915
• Docket Number: 4336.
• Parties: DINET v. RAPID CITY, S.D.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

222 F. 497

DINET v. RAPID CITY, S.D.

No. 4336.

United States Court of Appeals, Eighth Circuit.

March 10, 1915

[Copyrighted Material Omitted]

S. E Wilson, of Hot Springs, S.D., and Norman T. Mason, of Deadwood, S.D. (Clifford A. Wilson, of Hot Springs, S.D., and Eben W. Martin, of Deadwood, S.D., on the brief), for plaintiff in error.

A. K Gardner, of Huron, S.D. (Albert R. Denu, George A. Jeffers, and Charles J. Buell, all of Rapid City, S.D., on the brief), for defendant in error.

Before SANBORN, HOOK, and CARLAND, Circuit Judges.

CARLAND Circuit Judge.

This action was brought by plaintiff in error to recover the principal and interest due upon 70 bonds of defendant in error, for $1,000 each, dated May 1, 1891, claiming to be the owner and holder thereof for value before maturity without notice of any fact affecting their validity. The answer of defendant in error, in addition to a general denial, pleaded two other defenses: First. That the bonds were in excess of the constitutional limit of indebtedness of defendant in error. Second. That although the bonds on their face purported to have been issued for the purpose of funding the valid indebtedness of defendant in error, they were in fact issued as a donation to the Dakota, Wyoming & Missouri River Railroad Company.

A trial to a jury was had, resulting in a verdict for defendant in error. It is claimed there is no evidence to support the verdict. This question is not before us, as it was in no way presented to the trial court during the trial. It was presented in a motion for a new trial, but the ruling of the trial court on that motion is not reviewable here. The reason for this has been so many times stated that we refrain from again repeating it.

Complaint is made of the admission and rejection of evidence. The witness Brennan, called by the defendant in error, was asked by its counsel:

'Do you remember what your idea was as to the question voted on at the election of March 24, 1891?'

This question was objected to as immaterial. The objection was overruled, and an exception taken. The question was immaterial. In view, however, of the fact that when the case went to the jury there was no conflict in the evidence showing the bonds to have been illegally issued, no prejudice resulted to plaintiff in error by the overruling of the objection. The court might have properly taken this question from the jury. The real contest on the evidence was as to whether the plaintiff in error purchased the bonds with notice of their invalidity.

The witness Friend, called by defendant in error, had testified that he had received in the early part of 1908 from a Mr. Elan four of the bonds in question. The witness was then asked by counsel for defendant in error the following question:

'I will ask you if you know what relation or connection there was between Mr. Elan and Mr. Coad at the time these bonds were turned over to you.'

This question was objected to by counsel for plaintiff in error as incompetent, not binding on the plaintiff, and involving unsworn declarations of some third party. The objection was overruled, and an exception taken. The witness answered: 'His agent.' Elan had testified previously that he had seen a power of attorney from Coad to Elan in the possession of Elan.

'I had a transaction with Mr. Friend, who testified yesterday, through Mr. Elan, a Milwaukee broker.'

If there was any error in overruling the objection to the question asked the witness Friend, it was cured, as Coad himself testified that he did have a transaction with Friend through Elan.

The witness Mathias testified concerning certain pencil notations which appeared on the bond register of defendant in error. These notations purported to show the disposition of the bonds that were authorized to be issued. There was no objection to the testimony at the time it was given, but subsequently there appears in the record a statement that this notation was objected to for the reason that it was not shown that it was made at the proper time by the proper officer in due form. The objection made after the witness had testified amounted to nothing. Counsel's remedy would have been a motion to strike out the testimony; further, there was no question about the disposition of the bonds.

The witness Crouch, called by defendant in error, testified to a conversation which he had with the plaintiff in error in the presence of Coad, Muhlke, and Furst as to the necessity of carrying the Rapid...