United States v. Humason

• Decision Date: 22 July 1881
• Citation: 8 F. 71
• Parties: UNITED STATES v. HUMASON.
• Court: U.S. District Court — District of Oregon

8 F. 71

UNITED STATES v. HUMASON.

United States Circuit Court, D. Oregon.

July 22, 1881

Rufus Mallory, for the United States.

Seneca Smith, for defendant.

DEADY D.J.

This action is brought against the defendant, Phoebe M. Humason as executrix of the will of Orlando Humason, on two bonds executed by William Logan in his life-time, as Indian agent together with said Humason and others as sureties,-- the one on August 1, 1861, in the penal sum of $25,000, and the other on July 1, 1862, in the sum of $20,000, and both conditioned that said Logan would 'carefully discharge the duties' of said office, and 'faithfully expend all public moneys and honestly account for the same, and for all public property which shall or may come into his hands without fraud or delay. The case was first before the court on a demurrer to the complaint, which was overruled on June 7, 1879, (see opinion of that date.) It was again before the court on a demurrer to the third, fourth, and fifth pleas or defenses contained in the answer, which was overruled on December 15, 1879, (see opinion of that date,) and on June 2 1880, the plaintiff replied to the answer, and the cause was at issue upon questions of fact. On February 19, 1881, the cause was tried with a jury and a verdict was given for the defendant.

On the trial the plaintiff proved the commissions to Logan, as Indian agent, under which the bonds were executed as alleged in the complaint, and then offered in evidence the transcripts of two bonds, purporting to have been executed by William Logan, as Indian agent and principal, and O. S. Savage, W. C. Moody, H. P. Isaacs, and O. Humason, as sureties, on August 1, 1861, and July 1, 1862, respectively, and certified by the secretary of the treasury, under the seal of the department, on April 20, 1878, in pursuance of section 882 of the Revised Statutes, to be true copies of bonds on file in that department. The execution of the bond by the defendant's testator being denied by the answer, the introduction of the transcripts was objected to by counsel, because they were not certified to under and in the manner prescribed by section 886 of the Revised Statutes, instead of section 882 thereof, and the objection was sustained. The plaintiff then asked to become nonsuit, but the defendant objected, and asked that the case be submitted to the jury, which was done, with direction to find a verdict for the defendant.

In the case of the U.S. v. Isaacs, it being an action upon the same bonds, there was a stipulation that it should abide the event of this action, and thereupon an order was made directing the latter to be included in the entry of the trial and verdict of the former; and the case of the U.S. v. Savage, another surety in the same bonds, standing upon a similar stipulation, was also included in such order. On April 11th the plaintiff filed a motion for a new trial, which was argued and submitted on May 11th. It is not claimed that the court erred in refusing to allow the plaintiff to become nonsuit. By section 243 of the Oregon Code a nonsuit cannot be granted on the motion of the plaintiff only, before trial or afterwards, without the consent of the defendant; and the later and better rule of the common law is to the same effect. Whenever the trial has been commenced, the right of the plaintiff to become nonsuit, and vex and harass the defendant with another action for the same cause, is gone. Folger v. The Robert G. Shaw, 2 W. & M. 531.

The power to grant a new trial is sufficient to prevent a failure of justice in the cases where a nonsuit was formerly suffered by the plaintiff to meet a surprise caused by the failure of evidence, or an unexpected ruling of the court; in which proceeding the court may impose such terms and conditions upon the moving party as a due regard to the rights and convenience of the other may require. Neither is it claimed that the court erred in refusing to admit the copies of the alleged bonds in evidence; because it is admitted that a copy of a bond certified under said section 882 is not evidence of the execution of such bond where the same is denied, but that it must be certified under section 886, by the register, subject to the right of the defendant to call for the production of the original instrument.

But a new trial as to the case of Humason is asked for on the ground of 'accident on the part of the secretary of the treasury in certifying the copies of the bonds upon which the action' is brought under section 882 of the Revised Statutes, instead of section 886 thereof, 'which mistake was not discovered by the attorney for the United States until at the trial, when the error was first discovered; the papers in the case having been forwarded to the attorney for the United States by the department of justice at Washington. ' These certificates were made nearly three years before the trial, and the answer denying the execution of the bonds, and which first made it necessary to have copies of them certified by the register of the treasury, under section 886, was filed on August 6, 1879,-- at least 18 months before the trial.

Upon this state of facts there is no ground to claim that the plaintiff was, in contemplation of law, surprised at the trial by the rejection of the copies of the bonds. The secretary of the treasury did not by either 'accident' or mistake certify to copies of the bonds under the wrong section. When he made his certificate it was not known that the execution of the bonds would be denied; neither was the secretary authorized to make a certificate under any other section than the one he did. Besides, the mistake or 'accident' of the secretary, if any, is the mistake or accident of the plaintiff, whose officer and agent he is. The copies of the bonds certified by the secretary were furnished to the district attorney, together with a transcript of the treasury books, accounts of the agent, and affidavits relating to them, to enable him to bring the proper action thereon; and when an issue of fact, if any, was made therein, it then became his duty to procure the proper evidence for the trial thereof. So, when the defendant denied the execution of the bonds, the burden of proof being cast upon the plaintiff, it was the duty of the district attorney to procure the proper evidence of such execution-- a copy of the bonds, certified by the register of the treasury under section 886-- before going to trial.

No excuse is given or offered for this negligence. The probability is that it occurred from inadvertence in not observing or bearing in mind the provision in the statute or the denial in the answer, or both. But in either case the omission is the negligence of the plaintiff, for which a new trial ought not to be granted; at least, not unless what is sometimes called 'the justice of the case' strongly demands it, and then only upon terms compensatory to the adverse party. But upon a careful examination of the treasury transcripts, and the circumstances of the case as shown in the pleadings, I do not think the ends of justice demand a new trial in this case, but the contrary. In this view of the matter the execution of the bonds by Humason may be admitted. The denial by the defendant is only a constructive one at best-- a denial of 'knowledge or information sufficient to form a belief' upon the question-- and it may be taken for granted that upon a new trial the plaintiff would be able to establish that fact beyond a doubt.

But the default of the principal, if any,...