Town of Fletcher v. Hickman

• Decision Date: 26 September 1913
• Docket Number: 3,952.
• Citation: 208 F. 118
• Parties: TOWN OF FLETCHER v. HICKMAN.
• Court: U.S. Court of Appeals — Eighth Circuit

208 F. 118

TOWN OF FLETCHER v. HICKMAN.

No. 3,952.

United States Court of Appeals, Eighth Circuit.

September 26, 1913

William A. Bryans, of Denver, Colo., for plaintiff in error.

William P. Malburn, of Denver, Colo. (W. H. Bryant and George L. Nye both of Denver, Colo., on the brief), for defendant in error.

Before SANBORN and CARLAND, Circuit Judges, and WILLARD, District judge.

SANBORN Circuit Judge.

The controversy between the parties to this action has narrowed to the single question whether or not by the prior adjudications of the question whether or not ordinance No. 10 of the town of Fletcher was published as provided by law the town is estopped from asserting that it was not so published for the purpose of defeating a recovery on its three bonds for $1,000 each, numbered 89, 97, and 98, which were part of the 150 bonds which it issued under that ordinance on July 1 1891, for the purpose of raising money to buy waterworks. The statute of Colorado (section 4443 of Mills' Ann. Stat 1891) required the publication of such an ordinance in the manner therein described and declared that it should not be in force until five days after its publication and that the record of it in the town's book of ordinances should be prima facie evidence that it was legally published. In 1903 Hickman was the owner of 69 of the 150 bonds but not of the three bonds numbered 89, 97, and 98. In that year he brought suit against the town on some of the coupons attached to his 69 bonds; the town defended on the ground that the coupons and the bonds were void because its ordinance No. 10, under which they were issued, had not been published; the court rendered a judgment against the town for $20,789.20, the amount claimed, which was subsequently affirmed by this court on the ground that the record of the ordinance in the book of ordinances was prima facie evidence of its publication, and the town had failed to prove that it was not duly published. Town of Fletcher v. Hickman, 136 F. 568, 69 C.C.A. 350. In 1905 Hickman brought a second action on (1) the judgment just mentioned and (2) the coupons attached to his 69 bonds which had matured after he brought his first action. The town defended the causes of action upon the coupons on the ground that they and the bonds to which they were attached were void because its ordinance No. 10, under which they were issued, had not been published; the court rendered a judgment for the amount claimed by Hickman, $62,216.72, on May 15, 1907, and that judgment was affirmed by this court on the ground that the record of the ordinance in the book of ordinances was prima facie evidence of its publication and the town had failed to prove that it was not legally published. Town of Fletcher v. Hickman, 165 F. 403, 407, 91 C.C.A. 353, 357.

On June 30, 1909, Hickman had purchased and was the owner of the three bonds now in question numbered 89, 97, and 98, and he brought the action now in hand on (1) the judgment for $62,216.72, (2) the 72 bonds, and (3) the coupons attached to the 72 bonds which had matured after the commencement of his second action. The town defended itself against a recovery on the bonds and coupons on the ground that they were void because its ordinance No. 10, under which they were issued, had not been published. Hickman replied that the town was estopped to make this defense by the fact that, at the trial of the former causes of action between the same parties, the issue whether or not the ordinance No. 10 had been published as provided by law had been actually litigated and adjudged in his favor. At the first trial of this action the 72 bonds, the coupons attached to them, and the pleadings and judgments in the two prior actions were received in evidence. In this state of the town offered evidence that ordinance No. 10 was not duly published, to which counsel for Hickman objected on the ground that the issue regarding its publication was res adjudicata by reason of the adjudications of it in the two prior actions between the same parties. The trial court admitted this evidence and Hickman took an exception. At the close of the trial the court rendered a judgment for Hickman on the former judgment but found that the ordinance was not properly published, that the question of its publication was not res adjudicata between the parties, and rendered a judgment in favor of the town upon the causes of action upon the bonds and coupons. Hickman sued out a writ of error, and this court reversed the judgment...