Springfield Safe-Deposit & Trust Co. v. City of Attica

• Decision Date: 07 February 1898
• Docket Number: 927.
• Citation: 85 F. 387
• Parties: SPRINGFIELD SAFE-DEPOSIT & TRUST CO. v. CITY OF ATTICA.
• Court: U.S. Court of Appeals — Eighth Circuit

85 F. 387

SPRINGFIELD SAFE-DEPOSIT & TRUST CO. v. CITY OF ATTICA.

No. 927.

United States Court of Appeals, Eighth Circuit.

February 7, 1898

This action is based on the coupons of certain negotiable bonds which were executed on January 1, 1889, by the city of Attica, a city of the third class, situated in Harper county Kan. The case was tried below without the intervention of a jury, on an agreed statement of facts, from which agreed statement the following facts appear, which are all that we deem material, in view of the questions that are presented by the record:

On November 20, 1888, certain citizens of the city of Attica petitioned the mayor and city council of said city to call an election for the purpose of voting bonds to establish and maintain a system of waterworks in said city. On November 21 1888, at a called special meeting of the council, the mayor of the city being in the chair, a motion was carried by a unanimous vote of the council, authorizing the mayor to call a special election to enable the qualified voters of the municipality to vote on a proposition to issue bonds in the sum of $20,000, bearing interest at the rear of 7 per cent per annum, the proceeds of which were to be used for the construction of waterworks in and for said municipality. The mayor issued such proclamation, the same being dated November 22, 1888, appointing an election to be held on December 15, 1888, but this proclamation, for some reason, was not published in a newspaper, as required by law, until November 30, 1888. On December 5, 1888, an ordinance was passed by the city council fixing the date of the election on December 15, 1888, as specified in the mayor's proclamation, and appointing a place within the city where the same should be held. At the time and place appointed an election was held. The vote was canvassed by the council, acting as a canvassing board, and the proposition to issue bonds was carried, there being no votes cast in opposition to the measure. On January 1, 1889, the mayor and clerk of the city of Attica executed bonds to the amount of $20,000, having semiannual coupons attached for the sum of $35 each, the rate of interest being 7 per cent. per annum. It seems that some question arose touching the legality of the proceedings by which the bonds had been authorized, and on February 27, 1889, the legislature of the state of Kansas passed the following act: 'An act to legalize the issue of waterworks bonds authorized by vote of the electors of the city of Attica, Harper county, held December 15th, 1888.

'Be it enacted by the legislature of the state of Kansas:

'Section I. That the bonds issued by the city of Attica, Harper county, Kansas, on the 1st day of January, 1889, by authority of an election held in said city on Saturday, the 15th day of December, 1888, in the sum of twenty thousand dollars for the purpose of constructing a system of water works in said city, be, and the same is hereby declared legal and valid.

Sec. II. This act shall be in force and take effect from and after its publication in the official state paper.

'Approved February 27, 1889.'

Thereafter, on March 2, 1889, the bonds in question were duly registered by the auditor of the state of Kansas, the certificate of registration indorsed upon each bond being as follows:

'State of Kansas-- as' I, Timothy McCarthy, auditor of the state of Kansas do hereby certify that this bond has been regularly and legally issued, that the signatures thereto are genuine, and that the same has been duly registered in my office, according to law. In witness whereof, I have hereunto set my hand and affixed my seal of office at the city of Topeka, this 2nd day of March, A.D. 1889.

T. McCarthy, Auditor State of Kansas.'

The bonds, when thus registered, were placed by the mayor of the city of Attica in the hands of a firm of brokers in the city of New York, to be sold on account of the city of Attica. They were so sold to the Springfield Safe-Deposit & Trust Company, the plaintiff in error, on March 21, 1889, for $20,699.18.

The assessment of property in the city of Attica for the year 1888, the same being the last assessment preceding the insurance of said bonds, showed the value of such property to be $97,670.56. The plaintiff in error, when it purchased said bonds on March 21, 1889, had in its possession for examination the various ordinances and resolutions, the proclamations, and the notice of election hereinbefore described. The money which was received from the plaintiff in error for the purchase of the aforesaid bonds was paid to the mayor of the city of Attica for account of the city, and was by him paid to a sugar company, to be used by it in the construction of a sugar plant in the city of Attica; but the plaintiff in error had no knowledge or notice of its being so used and diverted to other objects than that for which it was ostensibly raised. The city of Attica paid the interest coupons on said bonds as they matured from the date of their delivery up to and including the coupon which fell due January 1, 1893. When the bonds in suit were issued, and long prior thereto, an act was in force in the state of Kansas, being an act, which took effect on March 6, 1872 (see sections 7185, 7187, 7190, Gen. St. Kan. 1889), which permitted cities of the first, second, and third classes to contract for the construction of waterworks, and to issue bonds to defray the cost of such works, but it was provided in said act that the interest on the amount of bonds so issued should not exceed 'one per centum of the taxable valuation (of city property) as shown by the last preceding assessments. ' It was further provided 'that before any of the bonds provided for by this act shall be issued, the city council shall submit the question of such issue to the electors of the city, at any general or special election to be called for that purpose by the council, of which election at least twenty days' notice shall be given by publication in at least one newspaper published in said city. ' The trial court rendered a judgment in favor of the city of Attica, the defendant in error. The case has been brought to this court on a writ of error which was sued out by the plaintiff.

Henry A. King (O. H. Bently and Rudolph Hatfield, on the brief), for plaintiff in error.

C. V. Ferguson (F. W. Bentley, R. A. Sankey, and I. P. Campbell, on the brief), for defendant in error.

Before SANBORN and THAYER, Circuit Judges, and PHILIPS, District Judge.

THAYER Circuit Judge.

It is insisted, in the first place, by counsel for the defendant city, that the case is not properly before this court for review, because the assignment of errors does not contain a prayer for reversal, within the purview of section 997 of the Revised Statutes of the United States; and, in the second place, that no question is before this court for review because the record shows that the case was tried and submitted September 19, 1896, and held under advisement until March 18, 1897, at which latter date the plaintiff below filed a motion for a judgment in its favor on the agreed statement of facts, which motion was then overruled, and an exception taken. It is urged that, because the motion for judgment was not filed when the case was taken under advisement, in September, 1896, it was made to late, and that error cannot be assigned on account of the denial of the motion. On the first of these grounds we are asked to dismiss the writ of error, and on the second to affirm the judgment. Both of these motions, however, are without merit. In its petition for a writ of error, which is found in the record, the plaintiff alleges that in the progress of the cause certain prejudicial errors were committed, all of which appear in detail in its assignment of errors, wherefore it prays that a writ of error may be issued 'for the correction of errors or complained of. ' This is, in substance, a prayer for a reversal, within the requirements of section 997, since a reversal is the usual relief where prejudicial error has been committed. But, even if the point was well made, it is so far technical that we should have no doubt of our right and duty to permit the assignment of errors to be corrected by adding a prayer for a reversal. McClellan v. Pyeatt, 4 U.S.App. 98, 1 C.C.A. 241, and 49 F. 259, and authorities there cited. With reference to the application to affirm the judgment below, it is only necessary to say that the motion for judgment on the agreed facts was filed in time, even if it was not filed until the day the case was decided. Until that time the case was pending and undetermined. A formal motion for judgment, however, was, in our opinion, an unnecessary proceeding. The case having been submitted on an agreed statement, it was unnecessary to so more than to take an exception to the judgment when it was announced, and such an exception was duly taken. ...