« ForrigeFortsett »
said cause of action alleged in plaintiff's ! bonds of said county were determined and adpetition; and that it appears from all the judicated. And the state of Kansas further pleadings in said (ause that the said plaintiff shows the court .that the journal entry of is entitled to judgment as prayed for in its judgment and findings of the district court of petition. Now, therefore, said plaintiff moves ! Day county, Oklahoma, is in the custody of the court for judgment in this cause upon the the clerk of said district Court of Bay pleadings as prayed for in plaintiff's peti county, but for some reason unknown the tion."
said journal entry does not appear of record. The cause came on to be heard before the Wherefore, the state of Kansas prays the court upon said motion for judgment upon court that the court now order the journal the pleadings, and the court overruled the entry aforesaid to be entered of record in motion for reasons expressed in the argu- ! the records of the district court of Day comment, which, as stated by the court, was the ty, and for such other precautions as mily fait "that the journal entry and the matter of be necessary to preserve intact the profuniling the judgment indebtedness of the
ceedings of said court in the matter of County is not on file, never has been filed,
the funding of the judgment indebtedness there is no filing marks, and has never been of Day County, Oklahoma, dad and done recorded, and the entire absence of any record
at the sitting of said court at Grand, Day as to a term of court at that time or any en
county, Oklahoma, on July 10, 1991, try concerning the entry of judgment in that
aforesaid. And the state of Kansas. your case." While said cause was still pending
orator herein. as in duty bound, will ever and not finally disposed of, the court ad
pray, etc. The State of Kansas, by ('. ('. journed to the next day, and upon the recon
Coleman, Atty. Gen. of Kansas, and John S. vening of the court Jr. Darrow, attorney for
Dawson, Asst. Atty. Gen. of Kansas, Attordefendant in (rror, read and presented to the
ney's and Solicitors for the State of Kansas. court a motion asking that the journal entry "Territory of Oklahoma, Day County-88.: in the matter of funding the judgment indebt "John S Dawson, being duly Sworn. on eness of the county be entered upon the his oath says that he is Assistant Attorney journal of the court nunc pro tunc, which General of the state of Kansas; that he is motion was as follows:
familiar with the matters set forth in the “In the District Court of Day County, above motion; that all of the
that all of the allegations Oklahoma. In the matter of the Funding of and statements therein are true, so far as the Judgment Indebtedness of the County of he know's positively, and, as to all other matDay and Territory of Oklahoma. Motion to ters therein set forth, he believes them to be Enter of Record the Journal Entry of Judg true, and that your orator, the state of ment Relating to the Issue of Day County Kansas, is well entitled at law and in equity Funding Bonds of July 10, 1900. Comes now to the relief prayed for therein. the state of Kansas, by C. C. Coleman, its
"Johın S. Dawson. duly qualified and acting Attorney General, "Subscribed and sworn to before me. a and John S. Dawson, its duly qualified and notary public of Day county, Oklahoma, this acting Assistant Attorney General, and shows 27th day of March. to the court that the state of Kansas is the "[Seal.] C. B. Leedy, Notary Public. owner of certain judgment funding bonds of "My commission expires August 15, 1906." Day county, Oklahoma, issued July 10, 1900,
Notice of a purpose to file such motion was in the district court of Day county, Oklahoma,
on the day before the filing of the same under and by virtue of a judgment pro
served upon E. S. Sharp, county attorney, and nounced by said court on said date, in pur- | W. II. Monser, county clerk of Day (ounty. suance to a proceeding in said court invoked
Upon the filing of such motion counsel for by the board of county commissioners in ac the plaintiff in error objected to the considercordance with the laws of Oklahoma Ter
ation of it, for the reason that sufficient facts ritory, at a special sitting of said court at
were not shown to justify the relief askerl Grand, Day (ounty, Oklahoma, designated and for. The court thereupon announced that he ordered by the Supreme Court of Oklahoma , would hear the evidence, which offer was Territory and by the Honorable Chief Justice i objected to by counsel for plaintiff in error of said Supreme Court, and held in accord and the objection overruled. The court ance therewith. And the state of Kansas is thereupon entered its judgment directing the the bona fide holder in good faith of bonds recording of the journal entry of judgment 11, 12, 13, 14, 15, 16, and 18 of said issue, and of July 10, 1:100, authorizing the issuance of is vitally and materially interested, both in funding bonds, the coupons of which bonds law and in equity, in the matters involved in i issued pursuant to and in compliance with the proceeding whereby the judgment and the judgment of the court of July 10, 1900, other indebtedness of Day (ounty was de- . are in issue in this case, which judgment of termined on said July 10, 1900, as aforesaid, the court so entered was in words and and where the assessed valuation of the tax- ' figures as follows: able property of said Day county and the "And now, to wit, on March 28, 1.6i, at a statutory limit of indebtedness which might regular sitting of the above-named court, be and was funded into judgment funding the state of Kansas alipeared by John S.
Dawson, its attorney, and mored the court to enter of record the journal entry of judgment relating to the issue of Day county funding bonds of July 10, 1900, and the bond notice and publisher's affidavit thereto appertaining; and the said state of Kansas showed the court that the state aforesaid was the owner of certain of the bonds of Day county of the judgment funding issue of July 10. 19:00, issued by the board of county commissioners of Day county, Oklahoma Territory, under and by virtue of a proceeding had before the above-named court at the sitting of said Day county district court on said July 10, 1900, and that the said state of Kansas is vitally and materially interested and affected thereby. And it appearing that the said journal entry of the findings and proceedings had in said court on July 10, 1900, pertaining to the issue of Day county judgment funding bonds of said July 10, 1900, has been reduced to writing and is in the custody of the clerk of the district court of Day county, but the said journal entry has not been entered of record, and the court having been fully advised and informed in the premises and of all matters material and pertaining thereto, it is therefore decreed, adjudged and ordered that the clerk of the district court do now and here record the said journal entry and bond notice aforesaid, pertaining to the issue of the Day county judgment funding bonds of July 10, 1900, in the matter as entitled above. J. L. Pancoast, Judge Day County District Court."
This journal entry of the judgment of July 10, 1900, entered of record, is set out as Exhibit A of the plaintiff's petition. After hearing the motion to make the journal entry of July 10, 1900, this cause was further called for hearing upon the motion for judgment on the pleadings, and the court thereupon set aside its former order overruling the motion for judgment on the pleadings, and, upon reconsideration of the same, sustained said motion and rendered judgment in favor of the plaintiff in the sum prayed for in the petition herein. Motion for new trial having been made and overruled, which prayed for a new trial upon the ground that the judgment was not sustained by sufficient evidence and for error of law occurring at the trial and excepted to at the time, the plaintiff in error, defendant below, brings the cause to this court praying a reversal for the errors complained of.
E. S. Sharp, Co. Atty., and Cowgill & Dunn, for plaintiff in error. C. C. Coleman, Atty. Gen., and John S. Dawson, Asst. Atty. Gen., for defendant in error.
the pleadings and proceedings had and considered upon the trial of the cause. It will be observed that, while the action is founded upon written instruments, the answer setting up such defense as the county of Day, plaintiff in error, had to the allegations of plaintiff's petition, was not verified, by reason whereof the allegations of the petition, touching the execution of the instrument sued on, under the provisions of section 4312, Wilson's Rev. & Ann. St. 1903, are taken as true. Such statute provides: "In all actions, allegations of the execution of written instruments and endorsements thereon, of the existence of a corporation or partnership, or of any appointment or authority, or the correctness of any account duly verified by the affidavit of the party, his agent or attorney, shall be taken as true unless the denial of the same be verified by the affidavit of the party, his agent or attorney." By the pleadings in the case therefore, when the same was submitted to the trial court for consideration upon the motion for judgment on the pleadings, it was admitted: First, that Day county was a duly organized and existing municipal corporation of the territory of Oklahoma as in the petition alleged; second, that on July 10, 1900, at a lawful sitting of said court, the board of county commissioners, by authority of the court. executed the bonds, the coupons of which are herein sued on, and said bonds were signed by the chairman of the board of county commissioners of said county and attested and signed by the duly qualified and acting county clerk, and were thereafter signed by the duly qualified and acting judge of the district court of said county, whose acts were duly attested by the duly qualified and acting deputy clerk of said district court; third, that the coupons sued on herein were and are the coupons of the bonds so as aforesaid executed, and were signed by the chairman of the board of county commissioners of said county and attested by the county clerk. There was therefore such admission in the pleadings as to support a judgment based thereon, and the same must stand, unless the allegations of the answer present some fact touching the validity of the bonds and coupons presented by the petition which entitled the, defendant to a hearing thereon. We will, therefore, notice and consider the allegations of the answer in connection with the admitted facts in the case.
The first allegation, that the bonds Nos. 11 to 18, inclusive, and interest coupons there. to attached, a portion of which coupons were not issued pursuant to any law or authority, and are therefore not a binding obligation, is not discussed in the brief of plaintiff in error or insisted upon as a milterial ground of defense; nor can we see how such a defense can be made. The bonds recite that they are issued pursuant
GILLETTE, J. (after stating the facts as above). This action having been determined in the court below upon a motion for judgment on the pleadings, and owing to the importance of the subject-matter, we have set out at length, in the statement of facts,
to the authority conferred by article 2, c. It is urged by the plaintiff in error that 5, p. 70, of the Session Laws of Oklahoma it was error to order the journal entry of for 1897, and the trial court, at the time of July 10, 1900, to be made of record at that the iendition of its judgment in this case, time nunc pro tunc. But we are unable to see took judicial notice of the provisions of or understand how such question can be such statute, which authorizes the issuance considered in this case. No such order was of municipal bonds of the character of the made in this case, nor was the motion to bonds and coupons in question. The next enter the journal entry of July 10, 1900, material allegation of the answer was that filed in this case. Such motion was entitled, no court was held in Day county on July "In the matter of the funding of the judg. 10, 1900, the day on which the instruments ment indebtedness of the county of Day sued on were by the district court authoriz and territory of Oklahoma," which was foled to be issued, and a judgment indebted lowed by the words "Motion to enter of recness found to exist which, under the au ord the journal entry of judgment relating to thority of the statute, was authorized by the issue of Day county funding bonds of the court to be funded into judgment fund July 10, 1900.” The motion thereafter sets ing bonds. By this plea, we take it that it forth that it is made by the Attorney Genwas intended by the plaintiff in error to eral of the state of Kansas, who appeared on plead what is commonly termed nul tiel behalf of the state as owner of the funding record, which is ordinarily proved by in- | bonds of Day county issued July 10, 1900, by spection of the record. The bonds, from authority of the honorable district court of which the coupons sued on were taken, as that county, and asks that an order nunc pro shown by the petition, recited the holding tunc be entered of the journal of July 10, of the court July 10, 1900, and the authority 1950, showing the authority of the court to of the court of that date to execute the issue the judgment funding bonds which same; and Exhibit A to the petition sets out were issued of that date. The motion was the journal entry of that date fully authoriz- | verified as to its allegations. An appearance ing the execution of the bonds, to which was entered in the matter of such pending journal entry was attached the certificate motion by counsel for Day county, and it was of the clerk of the court that such journal then heard by the court, resulting in the orentry was correct. There was, however, no der, as above stated, directing the record of record upon the journal of the court of a the proceedings of July 10, 1900, to be then session of the court held on that date, and made. If there was any error committed in the journal entry attached to plaintiff's peti. the matter of such proceedings, such error tion and certified as correct nowhere ap can be reviewed only by an appeal of the peared on the records of the court. When, cause to which they relate. Such proceeding under this plea, the conditions of this rec was no part of this case, and, as no appeal ord were called to the attention of the court, was taken from the order of the court dithe motion for judgment upon the pleadings recting an entry of the journal of July 10, was overruled, and further proceedings in 1900, such journal must stand of record with the case temporarily suspended, during the same force as if recorded the date on which time a motion was made and filed in which the judgment was found. We may the court by the defendant in error, asking say, however, touching such procedure, that to have entered upon the records of the we know of no reason why a person interested court nunc pro tunc journal entry of the in a judgment of a court of record should not judgment of July 10, 1900, authorizing the appear before the court at any time and ask issuance of the bonds. Notice was served to have the journal of the court made correct upon the county attorney and county clerk and complete as of the date such record of the pendency of such motion, at that should have been made; and, we think, the time, and a hearing was had thereon the court should entertain and hear and deternext day. The plaintiff in error appeared mine such motion upon due notice to those as to said motion, upon which hearing it adversely interested, and where, as in this was made to appear that the journal entry case, the default originally was that of the of July 10, 1900, was among the files of the court and its officials, and not of the party, court, but had never been entered of rec we think it the duty of the court to make its ord, and testimony was offered showing a records complete at auy subsequent date session of the court on that day, to wit, when the default is called to the court's atJuly 10, 1900, at which time a hearing was tention, and that this may and should be done by the court had upon the question of the when justice demands, without the formality issuance of the bonds of the county to fund of a motion, as the court upon its own mothe judgment indebtedness against the coun tion may and should make its record comty. As a conclusion of the hearing, and by plete. Mitchell v. Orerman, 103 U. S. 65, reason of the facts shown to exist, the court 26 L. Ed. 369; Borer v. Chapman, 119 U. S. ordered the journal of the session of July 596, 7 Sup. Ct. 312, 30 L. Ed. 532. It will be 10, 1900, to be made of record then. Upon noticed that this procedure by which the such record being made, the motion in this journals of the court of July 10, 1900, were case for judgment upon the pleadings was by order of the court made of record, took renewed, and such motion sustained.
place while the action under consideration
was pending, and, we think, that if the mak that it could not be disputed by oral testiing of such record changed the defense of mony admissible under the pleadings, for the plaintiff in error, or was a matter of courts will take judicial notice of their own such surprise as that further procedure in the sessions. That the term of court was held case could not then be reasonably had, the at Grand, instead of at Ioland, may thereplaintiff in error would have been entitled to fore be regarded as settled. That Grand was a continuance or any necessary delay of the the place where all the public business of proreeilings, but none was asked, and no Day county was and is transacted was and is lppeal was taken from the nunc pro tunc or a matter of such public notoriety that the der. The record made pursuant to such or court and all persons interested would take (ler must st:ind as the record of the court
notice of, and would not and could not quesof July 10, 1900, and was a record of the tion or ignore, it. That Ioland was the origcourt when the plea of nul tiel record was inally established county seat is also a fact overruled, and judgment was entered upon
beyond controversy. That Ioland has been the motion for judgment on the pleadings.
abandoned as a townsite for many years, and The plaintiff's petition sets forth the jour was so abandoned prior to the year 1900, is mal entry of July 10, 1900, and, as the plea
a matter of such general knowledge as that of nul tiel record is ordinarily determined
it would seem to be trifling with justice to by the record, such record having been made
presume that there was any controversy over complete, the court had before it upon the
the question as to where the actual seat of poleadings and the record all the facts neces
justice for the transaction of public business sary to a final determination of that plea.
for that county was located. There remains, The third defense presented by the answer
therefore, only the question as to whether of the plaintiff in error is that the county
or not the determination of the court sitting seat of Day county was established by an
at Grand, in the county of Day, was a act of Congress at Ioland, and that the dis
binding and conclusive determination as trict court of said county could only be legal.
against parties litigant, appearing in the ly held at such county seat, and that no
court and without objecting at the time, and
submitting to the court their controversies court was held at Ioland on July 10, 1900, and no proceedings were there had in the
to be determined by it. If Ioland was the district court of Day county touching the
county seat de jure, Grand was the county finding of the county's indebtedness.
seat de facto, and tbis the district court of pears from the record that on. July 10, 1900,
Day county, being a court of general juristhe session of the district court of Day county
diction, would take judicial notice of, and the
validity of the proceedings had could not be was held at Grand, instead of at Ioland, and
questioned in a collateral proceeding. was being held at Grand at the time this
In a case almost identical with this case. case was heard. Under the provisions of the
the Supreme Court of Colorado used the folorganic act of the territory of Oklahoma, it
lowing language (In re Chas. Allison, 13 Colo. is made the duty of the Supreme Court to de
525, 22 Pac. 820, 10 L. R. A. 790, 16 Am. St. fine the judicial districts of said territory,
Rep. 224): "Xo issue made with the definition and to fix the time and place of each county
usually given, that a 'court' consists of 'perseat in each district, where the district court
sons officially assembled under authority of shall be held, and designate the judge who
law, at the appropriate time and place, for shall preside therein. An order of the Su
the administration of justice'; nor it is depreme Court therefore, fixing a term of
nied that the place of meeting is an imporcourt, is made pursuant to the requirements
tant element in the definition. We shall mainof the organic act. A term of court in any
tain the proposition that, under the admitted county is only held pursuant to an order of
facts before us, there was a de facto location the Supreme Court fixing such terms. From
of the county seat at the town of Conejos, the record before us it appears that the Su and that therefore the judgment under conpreme Court of the territory had, prior to sideration is not vulnerable in the present July 10, 1900, fixed a term of court for Day proceeding. For more than 12 years Conejos county for that date, and had fixed the place has been regarded as the lawful county seat. at Grand, and specified that such term was
During this period, unquestionably it has for the issue of county bonds. As the courts been the county seat in fact; that is, the of this territory are organized, we think county buildings, offices, and records have, that judicial notice of such an order may be without exception, been at that place, and the taken, for it is equivalent to a statute fixing county business, including that of the district a term of court, and the journal entry of a and county courts, has all been transacted proceeding had in the court on that date is there. The people of the state and the differsufficient to establish the fact that the court ent departments of the state government was held pursuant to such order. All this have recognized Conejos as the place where was before the court when it finally consid the county seat was lawfully established. No ered the motion for judgment on the plead- direct judicial proceeding has ever been inings as fully as though the same had been es stituted for the purpose of determining the tablished by testimony introduced for that legality of such location in fact, or for the purpose, and was probably so established as purpose of restoring the county seat to Gau
daloupe. On the contrary, the inhabitants not challenged-and our position is simply of the county, so far as we are advised, have that, though a county seat may have been universally acquiesced in this disposition of originally unlawfully removed, but sulsethe county seat. During these 12 years prop quent circumstances may supervene which erty has been bought and sold, and public authorize the view that the proceedings of moneys have been expended in permanent such a tribunal at the place of relocation are improvements at the town of Conejos, upon valid, and forbid litigating collaterally, by the strength of its being the county seat. Es habeas corpus, the regularity of the removal. tates of deceased persons have been there ad The foregoing views do not conflict with ministered upon, and the interests of minor those expressed by Coulter v. Routt County heirs have been there adjudicated. At that Com'rs, 9 Colo. 238, 11 Pac. 199. A general place property rights of all kinds have been law exists, as already suggested, providing litigated and determined, and criminals have that the district court shall be held at the been tried, convicted, sentenced, and execut county seat of the various counties. The speed, or sent to the penitentiary. In this state, cial act considered in the Coulter Case apthe power to locate and remove the county plied to the county of Routt alone. seat is lodged by the Constitution exclusively vided for holding the terms of the district with the inhabitants of the county. They court at the town of Yampa, which was not may, by a popular vote, establish or change and never had been a county seat. This the county seat at will, save that removals court held that the act conflicted, in this recannot be made oftener than once in four spect, with the constitutional provision inhibyears. Their absolute power over the subject iting special legislation "regulating county is restricted only by the limitation mentioned and township affairs." Thus it will be seen and the statutory regulations prescribing the that the decision is not in conflict with the manner of calling and conducting the elec view that, when the county seat itself is retion. The knowledge of the inhabitants of moved, though the removal be de facto mereConejos county that the county seat had in ly, the place of holding the court may, under fact been removed from Gaudaloupe, and circumstances like those here presented, also established at the town of Conejos, cannot be changed." See, also, Watts v. State, 22 be questionedl; nor can we presume that, TexApp. 572, 3 S. W. 769; Robinson v. while acquiescing during 12 years in the Moors, 25 Ill. 133; 11 Cyc. p. 308 (4); 7 change, they have been ignorant of the man Am, & Eng. Cyc. of Law, p. 104.5. ner in which it took place; and, since the If there is any controversy concerning the entire control of the subject has always been county seat of Day county, and the power of in their hands, we are inclined to the view officials to transact public business at Grand, that their conduct in the premises should be instead of at Ioland, such controversy can treated as such a confirmation of the unau be settled only in a direct proceeding for that thorized transfer, or at least such a waiver purpose. Questions of this character have of objection thereto, as justifies an applica often been before the courts, and it has been tion of the de facto doctrine. so far as ju the universal holding that the judgment and dicial proceedings that have taken place un conclusions of courts of record cannot be rolder all the forms of law at the town of Cone laterally attacked upon the ground that the jos are concerned. This conclusion is rein court at the time of the transaction of the forced by the facts above narrated, showing business was not held at the county seat or a universal outside recognition of Conejos place designated for the holding of such as the de jure county seat during the long (ourt, unless the question is presented in the period mentioned. We are aware of no prin case and at the time of the hearing complainciple of law that compels us to hold all such ed of. In this case, which is an action to proceedings void, and thus entail the appal recover upon the coupons of bonds of Day ling consequences that would inevitably fol county, the execution of which was authorizlow. We do not hold that there may be a de ed hy the judgment of the district court of facto court, although this view has been vig said county, it is sought to question their vaorously and ably maintained. Burt v. Wi lidity because of the fact, as alleged, that nona & St. P. R. Co., 31 Minn. 172. 18 V. W. the district court when it authorized the ex285, 28.9, 4 Am. & Eng. Corp. Cas. 126, and ecution of such bonds was sitting at Grand, note. When a court or office is created by instead of at Ioland. The recitations of the statute, and when the statute creating it is bonds, as well as the allegations of the jourunconstitutional, there is no de jure court or nal entry authorizing their execution, show office, as the case may be (Ex parte Stout, 5 that the proceedings in the court, as a conColo. 509), and under such circunstances we clusion of which such bonds were authorized, have the highest authority for the view that were begun and had upon the application of there can be no de facto court or office (Vor the board of county commissioners of said ton v. Shelby County, 118 M. S. 12:5, 6 Sup. county, and it appears that, pursuant to such Ot. 1121, 30 L. Ed. 178). But we are here proceeding and judgment, certain judgments dealing with a court unquestionably de jure of record were funded into the bonds, the so far as its establishment and organization validity of which is here brought in ques
tion. It would be il proceeding at right uljudge, the legality of whose title and office is gles with equity and justice to say that the