State v. Chatauqua County School District No. 3

• Decision Date: 09 October 1885
• Citation: 8 P. 208,34 Kan. 237
• Parties: THE STATE OF KANSAS v. SCHOOL DISTRICT NO. 3, CHAUTAUQUA COUNTY
• Court: Kansas Supreme Court

8 P. 208

34 Kan. 237

THE STATE OF KANSAS v. SCHOOL DISTRICT NO. 3, CHAUTAUQUA COUNTY

Supreme Court of Kansas

October 9, 1885

[Copyrighted Material Omitted]

Error from Chautauqua District Court.

ACTION brought by The State of Kansas against School District No. 3 Chautauqua County, to recover on seven school-district bonds and thirty-five accompanying coupons. The petition contained a separate count and a separate statement of a cause of action upon each of the seven bonds and on each of the thirty-five coupons. The statement of the cause of action upon the first bond reads as follows:

"On the first day of January, 1873, at Peru, in the county of Howard and state of Kansas, School District No. 135, county of Howard, state of Kansas, the same being then a school district duly organized and existing under the laws of the state of Kansas, and acting as such, and by J. O. Greytrax director, Albert Kees, clerk, and J. M. Brown, treasurer of said district, the same having been duly elected, appointed, qualified and acting as such officers, made and issued its certain bond, dated on said day at said place, whereby, for value received, it promised on the first day of June, 1875, to pay to A. B. Close or bearer two hundred dollars, at the banking house of W. N. Coler & Co., in the city of New York, with interest at the rate of ten per cent. per annum, payable annually, on the first day of June of each year, according to divers coupons thereto attached, which bond, in order to distinguish it from others of like character, was marked No. 'One.' A copy of said bond is hereto attached, and made part hereof. On the sixteenth day of January, 1873, said bond was duly registered in the office of the county clerk of said Howard county, Kansas.

"And said plaintiff further says, that in pursuance of an act of the legislature of the state of Kansas, entitled 'An act to divide the county of Howard, and to erect the territory thereof into the counties of Chautauqua and Elk, to provide for the due organization of said counties, the filling of vacancies in offices, for the proper division of the property and indebtedness of Howard county, and in regard to the taxes and records thereof,' approved March 3, 1875, the territory embraced in School District No. 135, of Howard county, Kansas, became, and still is, a part of Chautauqua county, Kansas. Thereupon, said Chautauqua county being organized, in pursuance of the act of the legislature aforesaid, the county superintendent of said Chautauqua county proceeded to and did change the name of said School District No. 135, Howard county, to said defendant School District No. 3, Chautauqua county, state of Kansas; that said School District No. 3, Chautauqua county, lies wholly within the boundaries of the former School District No. 135, of Howard county, Kansas, and includes within its borders all the inhabitants of School District No. 135, Howard county, and is the same corporate entity as School District No. 135, Howard county, Kansas. And plaintiff further says, that School District No. 135, Howard county, Kansas, is wholly merged in and become a part of said School District No. 3, of Chautauqua county, state of Kansas, which has succeeded to and become possessed of all the property, rights and privileges formerly enjoyed by said School District No. 135, Howard county. Before said bond by its terms became due and payable, the said bond came to and for value became the property of this plaintiff, the same having been sold and delivered for a valuable consideration to the commissioners of the permanent school fund of the state of Kansas for this plaintiff, who therefore became, and ever since has been and still is, the true and lawful owner and holder thereof. When said bond by its terms became due and payable, the same was duly presented at the place of payment therein mentioned, and payment demanded, but refused because said defendant had not, nor had said School District No. 135, Howard county, nor did either of said districts, ever have funds at said place. The said plaintiff has often applied to said defendant to pay the said bond, but it has refused to do so, notwithstanding it is justly indebted thereon to the plaintiff in the full sum of two hundred dollars, which it claims, with interest at the rate of ten per cent. per annum from the first day of June, 1875."

The statement of the cause of action upon each of the other bonds is precisely the same as the statement of the cause of action upon the first bond, except that such statements show that the bonds were numbered consecutively from one to seven, and became due in successive years from June 1, 1875, to June 1, 1881. The statement of the cause of action upon each of the coupons is precisely the same as the statement of the cause of action upon the bonds, except that clauses with reference to the coupons are added. A copy of each of the bonds and of each of the coupons is attached to the petition and made a part thereof, and a part of the statement of the cause of action to which it properly belongs. The first bond reads as follows:

UNITED STATES OF AMERICA.

No. 1.]

STATE OF KANSAS.

[$ 200.

DISTRICT SCHOOL BOND OF SCHOOL DISTRICT NO. 135, HOWARD COUNTY.

Know all men by these presents, that School District No. 135, county of Howard, state of Kansas, is indebted unto A. B. Close or bearer, in the sum of two hundred dollars, lawful money of the United States, to be paid on the first day of June, 1875, at the banking house of W. N. Coler & Co., in the city of New York, with interest at the rate of ten per cent. per annum, payable annually, on the first day of June of each year, on presentation of the annexed coupons, as the same becomes due. This bond is issued in pursuance of an act of the legislature of the state of Kansas, entitled "An act to enable school districts in the state of Kansas to issue bonds," approved February 26, 1866, and acts amendatory and supplemental thereto.

In testimony whereof, this bond has been issued, signed by the director, countersigned by the clerk, and registered by the treasurer of said district.

Dated at Peru, county of Howard, state of Kansas, this first day of January, 1873.

J. O. GREYTRAX, Director.

Countersigned: ALBERT KEES, Clerk.

Registered by J. M. BROWN, Treasurer.

[Indorsed:] No. 1.--$ 200.--State of Kansas.--Registered school bond of School District No. 135, Howard County.--Ten per cent. interest--Payable annually, on the first day of June, at the banking house of W. N. Coler & Co., New York.--Matures June 1, 1875.

Each of the other bonds is the same as this, except as to number and date of maturity. The first coupon attached to the first bond reads as follows:

"School District No. 135, county of Howard, Kansas, will pay to bearer, on the first day of June, 1874, twenty-eight and 33-100 dollars, at the banking house of W. N. Coler & Co., in the city of New York, being one year's interest on bond numbered one.--ALBERT KEES, Clerk. J. O. GREYTRAX, Director."

Each of the other coupons is the same as this, except as to number and date of maturity.

The defendant answered to the plaintiff's petition, setting up five separate defenses; and the plaintiff replied to this answer by filing a general denial. Upon the issues made up by these pleadings, the action came on for trial before the court without a jury, at the November Term, 1883, and the plaintiff, to maintain the issues on his part, put a witness on the stand and asked him a question; whereupon the defendant objected to the introduction of any evidence under the petition, upon the ground that the same did not state facts sufficient to constitute a cause of action against the defendant, and the court sustained the defendant's objection and dismissed the plaintiff's action; to all of which the plaintiff duly excepted, and now brings the case to this court for review.

Judgment reversed and cause remanded.

W. A. Johnston, attorney general, for The State; Edwin A. Austin, of counsel.

Chas. J. Peckham, and M. B. Light, for defendant in error.

VALENTINE, J. HORTON, C.J., concurring. JOHNSTON, J., having been of counsel, did not sit.

OPINION

VALENTINE, J.:

The only ruling of the court below complained of in this case is the sustaining of an objection made by the defendant to the introduction of any evidence under the plaintiff's petition, upon the ground that the petition did not state facts sufficient to constitute a cause of action against the defendant, and the dismissal of the plaintiff's action upon the same ground. Preliminarily, we would say that such an objection is not favored by courts, and that where the sufficiency of the petition is raised for the first time and only by such an objection, the courts will construe the allegations of the petition very liberally for the purpose of sustaining the...