Town of Fletcher v. Hickman

• Decision Date: 23 November 1908
• Docket Number: 2,703.
• Citation: 165 F. 403
• Parties: TOWN OF FLETCHER v. HICKMAN.
• Court: U.S. Court of Appeals — Eighth Circuit

165 F. 403

TOWN OF FLETCHER v. HICKMAN.

No. 2,703.

United States Court of Appeals, Eighth Circuit.

November 23, 1908

William A. Bryans (Guy Le R. Stevick and L. Ward Bannister, on the brief), for plaintiff in error.

William P. Malburn (C. S. Thomas and W. H. Bryant, on the brief), for defendant in error.

Before VAN DEVANTER and ADAMS, Circuit Judges, and PHILIPS, District judge.

ADAMS Circuit Judge.

This was a suit in two counts: One to recover the amount of a former judgment rendered by the court below in favor of the plaintiff, Hickman, against the town of Fletcher, the defendant below, and the other to recover the amount due on coupons detached from 69 certain bonds issued by the town of Fletcher and belonging to plaintiff, Hickman. The Circuit Court directed a verdict and rendered a judgment for the plaintiff on both counts, and this writ of error is to secure a review of that action.

It is first objected that a suit does not lie on a judgment as long as the holder can enforce it by execution issued thereon in due and usual course. It is said that to permit a second judgment at the pleasure of the judgment creditor is unnecessarily harassing and vexatious to the judgment debtor. This view finds support in a few cases, but the general and almost universal rule is otherwise. 2 Freeman on Judgments Sec. 432; 2 Black on Judgments, Sec. 958, and cases cited; Gaines v. Miller, 111 U.S. 395, 4 Sup.Ct. 426, 28 L.Ed. 466; Hickman v. Macon County (C.C.) 42 F. 759. The right to enforce payment of a judgment by process of execution is merely cumulative. The obligation of the judgment debtor is to pay the judgment when rendered. If he fails to perform the obligation, no reason is perceived why the judgment creditor may not resort to the courts of the land to enforce it. If the judgement debtor desired to escape the vexation and annoyances of successive suits, it is pertinent to suggest that he had it in his power to do so, and at the same time save his creditor from greater vexation and annoyance, by discharging his obligation and paying his debt when due. There was no error in directing a verdict on the first count.

It is next contended that the ordinance of the town of Fletcher which purported to authorize the issue of bonds from which the coupons in controversy came is invalid because not published as required by law, and that the plaintiff Hickman was not an innocent holder for value of the bonds. The validity of this issue of bonds has been passed upon by this court in a former suit between these parties to recover on other unpaid coupons taken from them. Town of Fletcher v Hickman, 136 F. 568, 69 C.C.A. 350. In that case this court considered the present contention of the town relating to the invalidity of the ordinance. One of the vital contentions then considered and upon which the town now chiefly relies was that the ordinance authorizing the issue of the bonds was not published as required by law. The act of the General Assembly of Colorado approved April 4, 1877 (Laws 1877, p. 874), as amended by the act approved March 2, 1887 (Laws 1887, p. 443), found in Mills' Ann. St. Colo. 1891 vol. 2, Sec. 4364 et seq., authorized towns and cities by ordinance to contract an indebtedness and issue bonds for the purpose of acquiring a system of waterworks. Section 4443 of the Statutes provided that all such ordinances-- '* * * shall be published in some newspaper published within the limits of the corporation, or if there be none such, then in some newspaper of general circulation in the municipal corporation, * * * provided, however, that if there is no newspaper published within or which has a general circulation within the limits of the corporation, then and in that case, upon a resolution being passed by such council or board of trustees to that effect, such by-laws and ordinances may be published by posting copies thereof in three public places, to be designated by the board of trustees, within the limits of the corporation; and such by-laws and ordinances shall not take effect and be in force until the expiration of five days after they have been so published or posted. But the Book of Ordinances herein provided for shall be taken and considered in all courts of this state as prima facie evidence that such ordinances have been published as provided by law.'

This court has held (National Bank of Commerce v. Town of Granada, 54 F. 100, 4 C.C.A. 212), construing the Colorado Statutes, that the publication of an ordinance authorizing the creation of an indebtedness and issue of bonds for the purposes contemplated in this case was an essential prerequisite to the validity of the issue, and such is assumed by counsel to be the law applicable to this case. The contention on the part of the town is that, conceding an ordinance to have been duly passed, there was no lawful publication of it, and, as a result, the bonds issued by authority of the ordinance are void.

The bonds in question bore date July 1, 1891, and, to prove in the former case that there was no designation of three public places by the board of trustees for the posting of the ordinance, defendant introduced in evidence copies of the town records covering the period from the incorporation of the town until and inclusive of July 1, 1891.

These records disclosed that the board took no action designating places for posting the ordinance prior to the date of the bonds, but this court on the former appeal held that inasmuch as the date of bonds is not necessarily or usually the accurate date of their issue, lawful posting of the ordinance might have occurred after July 1, 1891, and inasmuch as the burden of showing the failure to publish was on defendant, it had not borne the burden. To supply the proof thus shown to be lacking the contest is renewed in this second suit on coupons of the...