Edwards v. Bates County

• Decision Date: 24 April 1893
• Citation: Edwards v. Bates County, 55 F. 436 (W.D. Mo. 1893)
• Parties: EDWARDS v. BATES COUNTY.
• Court: U.S. District Court — Western District of Missouri

55 F. 436

EDWARDS v. BATES COUNTY.

United States Circuit Court, W.D. Missouri, Western Division.

April 24, 1893

Thomas K. Skinker, for plaintiff.

Gates &amp Wallace, for defendant.

PHILIPSDistrict Judge.

This is a plea to the jurisdiction of the court.A brief recital of the history of this case will decide it.On November 13 1889, one Norman De V. Howard, through his attorney, Thomas K. Skinker, Esq., instituted suit in this court(Case No. 1,575) against the defendant county on two bonds issued by the county on account of Mt. Pleasant township.Said bonds were numbered 33 and 35, for $1,000 each, with interest coupons thereto attached maturing for the years respectively, 1880, 1881, 1882, 1883, 1884, 1885, 1886.A demurrer was sustained to this petition, September 1, 1890, on the ground that this court did not have jurisdiction, for the reason that the amount involved did not exceed $2,000, exclusive of interest and costs.SeeHoward v. Bates Co.,43 F. 276.

On January 16, 1891, the plaintiff herein, James C. Edwards, by the same attorney, instituted suit in this court(Case No. 1,666) against the defendant on the same coupons which were embraced in the said Howard suit, and on other coupons attached to the same bonds, which matured anterior to January 1, 1880.This suit was brought after the demurrer in the Howard Case was sustained, and without any dismissal of said suit in favor of Howard.On March 2, 1891, said suit of Howard was formally dismissed.The defendant demurred to the petition in the said suit of Edwards, (No. 1,666), which demurrer was by the court sustained as to all of said coupons sued on which matured up to January 1, 1880, for the reason that the cause of action thereon was barred by the statute of limitations.

Without dismissing said case (No. 1,666,)the plaintiff on October 15, 1891, brought the present suit (No. 1,758,) in which he includes said bonds numbered 33 and 35, sued on as aforesaid by said Howard, and all the coupons thereto attached from 1873 to 1886, inclusive, and in addition thereto seven funding bonds of the defendant county on account of said township for $100 each, dated October 1, 1885, and not maturing on their face until October 1, 1905.

By a condition indorsed on said funded bonds, the defendant county, on behalf of said township, reserved the right, at its option, to redeem said bonds at any time after five years from the 1st day of October, 1885; with the provision that, in case of the redemption of such bond or bonds before maturity, all interest not them earned or matured should be forfeited.Provision was made in said condition for the giving of notice of such election as to the time and place for the presentation of said bonds for redemption.Among other provisions, said condition contained the following:

'If any bonds be not presented as required in such notice, or within thirty (30) days after the date therein fixed, interest thereon shall cease from said date, but said bond with interest coupons to said date shall be payable upon presentment at the office of the treasurer of Bates county at any time thereafter.'

Conformably to this provision, the defendant gave the required notice that it would redeem said bonds at the State Bank, of St. Louis, Mo., on the 1st day of July, 1891, or within 30 days thereafter, and that, if said bonds were not so presented for payment, they would cease to bear interest, and would be paid upon presentment at the office of the treasurer of the defendant county.The defendant had the required money for the redemption of said bonds at the designated place, and at the time specified, and also had and has kept the requisite money for such special purpose in the county treasury of said county.But the holder of said bonds neither presented the same for redemption at the said bank in St. Louis, nor to the treasurer of the county.

Without the aid of said funded bonds, the plaintiff unquestionably would have no standing in this court, for want of jurisdiction.In Howard v. Bates Co., supra, it was held that the coupons attached to said bonds were for interest inhering to the principal sum, and, as the two bonds 33 and 35 only call for the aggregate principal sum of $2,000, the said matter in dispute thereon does not exceed $2,000, exclusive of interest and costs.

It must likewise be conceded that the judgment on the demurrer to plaintiff's prior action, No. 1,666, as to the coupons barred by the statute of limitations, is res adjudicata between the same parties.1 Herm.Estop. pars. 107-111, 274;Bissell v. Spring Va. Tp.,124 U.S. 115, 8 S.Ct. 495;Gould v. Railroad Co.,91 U.S. 526;Louis v. Brown Tp.,109 U.S. 162, 3 Sup.Ct.rep. 92;Nesbit v. Independent Dist., (decided April 18, 1892,) 12 S.Ct. 746;Price v. Bonnifield,2 Wyo. 80.

The plaintiff undertakes to save the coupons, from 1875 to 1880 on said bonds 33 and 35, from the statute of limitations, by alleging in his reply an acknowledgment by defendant of the debt within the preceding 10 years.It, perhaps, might be sufficient to say of this that, where the plaintiff relies upon a fact dehors the written instrument, to exempt the action from the operation of the statute of limitations, he should plead it in the petition, as otherwise the petition would be demurrable on its face.Keeton v. Keeton,20 Mo. 530.But waiving this, the fact relied upon is not sufficient.It is that the defendant within the 10 years made an offer to compromise said bonds at a given per cent.This offer was declined by the holders of these two bonds, while all the others accepted the offer.An offer to compromise, unaccepted, cannot be made the basis of a promise to pay, so as to stop the running of the statute of limitations. ...