School Dist. No. 42, of Pawnee County v. First Nat. Bank of Xenia

• Decision Date: 11 February 1886
• Citation: 26 N.W. 912,19 Neb. 89
• Parties: SCHOOL DISTRICT NO. 42, OF PAWNEE COUNTY, PLAINTIFF IN ERROR, v. FIRST NATIONAL BANK OF XENIA, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

26 N.W. 912

19 Neb. 89

SCHOOL DISTRICT NO. 42, OF PAWNEE COUNTY, PLAINTIFF IN ERROR, v. FIRST NATIONAL BANK OF XENIA, DEFENDANT IN ERROR

Supreme Court of Nebraska

February 11, 1886

ERROR to the district court of Pawnee county. Tried below before BROADY, J.

AFFIRMED.

T Appleget & Son, for plaintiff in error.

G. M Humphrey, for defendant in error.

OPINION

COBB, J.

This action was brought in the district court of Pawnee county by the defendant in error against the school district, plaintiff in error, on two papers purporting to be the bonds of said district, issued for the purpose of borrowing money to build a school-house. The plaintiff claimed in its petition to be a bona fide purchaser of the bonds, for value, before maturity, in the regular course of business, and without notice of any defense to or defect in the said bonds.

The defendant made answer in which it denied that there ever was a regular or legally constituted meeting of the electors of the district which authorized the issuance of bonds; denied that the school district made payments on said bonds as set forth in the petition, or authorized any one to make them; denied that the cause of action arose within five years; denied that the plaintiff is an innocent purchaser before due for value; denied the indebtedness; denied that the person who signed his name to the bonds as treasurer was at the time treasurer of the district; and denied that the defendant executed the bonds in controversy. There was a trial to the court (a jury being waived by both parties) which found for the plaintiff. A new trial being refused and judgment rendered for the plaintiff, the cause was brought to this court on error. Three principal points are relied on:

1. The court erred in admitting the bonds sued on in evidence.

2. The court erred in admitting the books of the county treasurer in evidence.

3. The court erred in admitting the books of the county clerk in evidence.

Under the first point it is not denied that the bonds are fair on their face, and each accompanied by a certificate showing that they were regularly registered according to the requirements of the statute then in force. But the bonds bear date the 16th day of October, 1873, and are signed by John G Winkler, director, Peter Robertson, moderator, and William Richards, treasurer; while it appears that at that date H. C. Mayberry was the treasurer of the district. According to the county clerk's certificate, the bonds were registered on the 23d day of October, and the evidence is conclusive that they were not in fact issued or parted with by the officers of the district until on or after that date, and it appears by the records of the school district, plaintiff in error, received in evidence without objection, that William Richards was appointed treasurer of said school district on the 22d day of October, 1873. This was done at a special meeting and to fill the vacancy caused by the removal of H. C. Mayberry. As I understand it, the true date of the issuance of bonds by a municipal or other corporation is the day when it actually parts with the control or custody of them pursuant to contract, and not necessarily the day of the date which they bear. There is nothing in the law which requires it, nor is it by any means a universal custom or practice for all of the officers of a corporation who sign bonds or other commercial paper to sign the same at the same time. And, accordingly, it appearing that William Richards was not district treasurer on the 16th, the day upon which the bonds bear date, and was such treasurer on the day on which they were registered, and a day prior to their being actually issued by the...