Board of County Commr's. of Day County v. State

1907 OK 97, 91 P. 699, 19 Okla. 375, 1907 Okla. LEXIS 212

• Court: Supreme Court of Oklahoma
• Decided: September 5, 1907
• Status: Published

Opinion

Opinion of the court by

Gillette, J.:

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, 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 count}'' 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 Ann. Stat., 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 thereto 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 ! ! ! i error or insisted upon as a material ground of defense, ñor can we see how such a defense can be made. The bonds recite'that they are issued pursuant to the authority conferred by articled, chap. 5, of the Session’Laws of Oklahoma for 1897, and the trial court, at the time of the rendition of its judgment in this case, took judicial notice of the provisions of such statute,'which authorizes the issuance of municipal bonds of the character of the bonds and coupons in question.

The next material allegation of the answer was that no court was held in Day county, on July 10, 1900, the day on which the instruments sued on were by the district court authorized to be issued, and a judgment indebtedness found to exist which, under the authority of the statute, was authorized by the court to be funded into judgment funding bonds. ’ By this plea, we take it that it was intended by the plaintiff 'in error to plead what is commonly termed nul tiel record, which is ordinarily proved by inspection of (the record. The bonds, from which the coupons sued on were taken, as shown by the petition, recited the holding of the court July 10, 1900, and the authority of the court of that date to execute the same; and Exhibit A to the petition sets out the journal entry of that date fully authorizing the execution of the bonds, to which journal entry was attached the certificate of the clerk of the court, that such journal entry was correct. There was, however, no record upon the journal of the court of a session of’the court held on that date, ánd the journal entry attached to plaintiff’s, petition, and certified as correct nowhere appeared on the records of the court. When under this plea the conditions of this .record were called to the attention of the court, the motion for judgment upon the pleadings was overruled, and further proceedings in the case temporarily suspended, during which time a motion was made and filed in the court by the defendant in error, asking to have entered upon the records of the court nunc pro tunc journal entry of the judgment of July 10, 1900, authorizing the issuance of the bonds. Notice was served upon the county attorney and county clerk of the pendency of such motion, at that time, and a hearing was had thereon the next' day. The plaintiff in error appeared as to said motion, upon which hearing it was made to appear that the journal entry of July 10, 1900, was among the files of the court, hut had never been entered of record, and testimony was offered showing a' session of the court on that day, to-wit, July 10, 1900, at which time a hearing was by the court had upon the question of the issuance of the bonds of the county to fund the judgment indebtedness against the county. As a conclusion of the hearing, and by reason of the facts shown to exist, the court ordered the journal of the session of July 10, 1900, to be made of record then. Upon such record being made, the motion in this case for judgment upon the pleadings was renewed, and such motion sustained.

It is urged by the plaintiff in error that it was error to order the journal entry of July 10, 1900, to be made of record at that time nunc pro tunc But we are unable to see or understand how such question can be considered in this case. No such order was made in this case, nor was the motion to enter the journal entry of July 10, 1900, filed in this case. Such motion was entitled, “In the matter of the funding of 'the judgment indebtedness of the county of Day and territory of Oklahoma,” which was followed by the words “Motion to enter of record the journal entry of judgment relating to the issue of Day county fnuding bonds of July 10, 1900.” The motion thereafter sets forth that it is made by the attorney general of the state of Kansas, who appeared -on behalf of the state as owner of the funding bonds of Day county issued July 10, 1900, by authority of the honorable district court of that county, and asks that an order nunc pro tunc be entered of the journal of July 10, 1900, showing the authority of the court to issue the judgment funding bonds which were issued of that date. The motion was verified as to its allegations. An appearance w;as entered in the matter of such pending motion by counsel for Day county, and it was then heard by the court, resulting in the order, as above stated, directing the record of the proceedings of July 10,, 1900, to be then made. If there was any error committed in the matter of such proceedings, such error can be reviewed only by an appeal of the cause to which they relate. Such proceeding was no part of this case, and, as no appeal was taken from the order of the court directing an entry of the journal of July 10, 1900, such journal must stand of record with the same force as if recorded the date on which the judgment was found. We may say, however, touching such procedure, that we know of no reason why a person interested in a judgment of a court of record should not appear before the court at any time and ask to have the journal of the court made correct and complete as of the date such record should have been made, and, we think, the court should entertain and hear and determine such motion upon due notice to those adversely interested, and where, as i-n this case, the. default originally was that of the court and its officials, and not of the party, we think it the duty of ihe court to make its records complete at any subsequent date when the default is called to the court’s attention, and that this may and should be done when justice demands, without the formality of a motion, as the court upon its own motion may and should make its record complete. Mitchell v. Overman, 103 U. S. 65; Borer v. Chapman, 119 U. S. 596. It will be noticed that this procedure by which the journals of the court of July 10, 1900, were by order of the court made of record, took place while the action under consideration was pending, and, we think, that if the making of such record changed the defense of the plaintiff in error, or was a matter of such surprise as that further procedure in the ease could not then be reasonably had, the plaintiff in error would have been entitled to a continuance or any necessary delay of the proceedings; but none was asked, and no appeal was taken from the nunc pro tunc order. The recoid made pursuant to such order must stand as the record of the court of July 10, 1900, and was a record of the court when the plea of nul teil record was overruled, and judgment was entered upon the motion for judgment on the pleadings. The plaintiff’s peti tion sets forth the journal entry of July 10, 1900, and, as the plea of nul teil record is ordinarily determined by the record, such record having been made complete, the court had before it upon the pleadings and the record all the facts necessary to a final determination of that plea.

The third defense presented by the answer of the plaintiff in error is that the county seat of Day county was established by an act of congress at Ioland, and that the district court of said county could only be legally held at such county seat, and that no court was held at Ioland on July 10, 1900, and no proceedings were there had in the district court of Day county touching the funding of the county’s indebtedness.^ It appears from the record that on July 10, 1900, the session of the district court of Day county was held at Grand instead of at Ioland, and was being held at Grand at the time this case was heard. Under the provisions of the organic act of the territory of Oklahoma, it is made the duty of the supreme court to define the judicial districts of said territory, and to fix the time and place of each county seat in each district, where the district court shall be held, and designate the judge who shall preside therein. An order of the supreme court, therefore, fixing a term of court is made pursuant to the requirements of the organic act. A term of court in any county is only held pursuant to an order of the supreme court fixing such terms. From the record before us it appears that the supreme court of the territory had, prior to July 10, 1900, fixed a term of court for Day county for that date,’ and had fixed the place at Grand, and specified that such term was _for the- issue of county bonds. As the courts of this teritory are organized, we think that judicial notice of such an order may be taken, for it is equivalent to a statute fixing a term of court, and the journal entry of a proceeding had in the court on that date is sufficient to establish the fact that the court was held pursuant to such order. All this was before the court when’it finally considered the motion for judgment on the pleadings as fully as though the same had been established by testimony introduced for that purpose, and was probably so established as that it could not be disputed by oral testimony admissible under the pleadings; for courts will take judicial notice of their own sessions. That the term of court was held at Grand instead of at Ioland may, therefore, be regarded as settled. That Grand was the place where all the public business of Day county was and is transacted was and is a matter of such public notoriety that the court and all persons interested would take notice of, and would not and could not question or ignore it. That Ioland was the originally established county seat, is also a fact beyond controversy. That Ioland has been abandoned as a townsite for many years, and was so abandoned prior to the year 1900, is a matter of such general knowledge as. that it would- seem to be trifling with justice to presume that there was any controversy over the question as to where the actual seat of justice for the 'transaction of public business for that county was located. There remains, therefore, only the question as to whether or not the determination of the court sitting at Grand in the county of Dajr was a binding and conclusive determination as agáinst parties litigant, appearing in the court and without objecting at the time, and submitting, to the court their controversies to be determined by it. If Ioland was the county seat de jure, Grand was the county seat de facto, and this the district court of Day county, being a court of general jurisdiction, would take judicial notice of, and the validity of the proceedings had could not be questioned in a collateral proceeding.

In a case almost identical with this case, the supreme court of Colorado used the following language (In re Chas. Allison, 22 Pac. 820, 10 L. R. A. 790) :

‘■‘No issue made with the definition usually given, that a ‘court’ consists of ‘persons officially assembled, under authority of law, at the appropriate time and place, for the administration of justice’; nor is it denied that the place of meeting is an important element in the definition. We shall maintain the proposition that, under the admitted facts before us, there' was a de facto location of the county seat at the town of Conejos, and that, therefore, the judgment under consideration is not vulnerable in the present proceeding. For more than twelve years Conejos has been regarded as the lawful county seat. During this period, unquestionably it has been the county seat in fact; that is, the county buildings, offices and records have, without exception, been at that place, and the county business, including that of the district and county courts, has all been transacted there. The people of the state and different departments of the state government have recognized Conejos as the place where the county seat was lawfully established. No direct judicial proceeding has ever been instituted for the purpose of determining the legality of such location in fact, or for the purpose of restoring the county seat to Guadaloupe. On the contrary, the inhabitants of the county, so far as we are advised, have universally acquiesced in this disposition of the county seat. During these twelve years property has been bought and sold, and public moneys have been expended in permanent. improvements at the town of 'Conejos, upon the strength of its being the county seat. Estates of deceased persons have been there administered upon, and the interests of minor heirs have been there adjudicated. At that place property rights of all kinds have been litigated and determined, and criminals have been tried, convicted, sentenced, and executed, or sent to the penitentiary. In this state, the power to locate and remove the county seat is lodged by the constitution exclusively with the inhabitants of the county. They may, by a popular vote, establish or change the county seat at .will, save that removals cannot be made oftener than once in four years. Their absolute power over the subject is restricted only by the limitation mentioned, and the statutory regulations prescribing the manner of calling and conducting the election. The knowledge of. the inhabitants of Conejos county that the county seat had in fact been removed from Gaudaloupe, and established ’ at the town of Conejos, cannot be questioned, nor can we presume that, while acquiescing during twelve years in the change they have been ignorant of the manner in which it took place; and, since the entire control of the subject has always been in their hands, we are. inclined to the view that their conduct in the premises should be treated as such a confirmation of the unauthorized transfer, or at least such a waiver of objection thereto, as justifies an application of the de facto doctrine, so far as judicial proceedings that have taken place under all the forms of law at the town of Conejos are concerned. This conclusion is reinforced by the facts above narrated, showing a universal outside recognition of Conejos as the de jure county seat during the long period mentioned. We are aware of no principal of law that compels us to hold all such proceedings void and thus entail the appalling consequences that would inevitably follow. We do not hold that there may be a de facto court, although this view has been vigorously and ably maintained. Burt v. Winona & St. P. R. Co., 31 Minn. 472, 4 Am. & Eng. Corp. Cas. 426, and note.

“When a court or office is created by statute, and when the statute creating it is unconstitutional, there is no de jure court or office, as the case may be (Ex Parte Stout, 5 Colo. 509), and under such circumstances, we have the highest authority for the view that there can be no de facto court or office (Norton v. Shelby County, 118 U. S. 425, 30 L. Ed. 178).

“But we are here dealing with a court unquestionably de jure so far as its establishment and organization are concerned — -a court presided over by a judge, the legality of whose title and office is not challenged — and our position is simply that, though a county seat may have been originally unlawfully removed, but subsequent circumstances may supervene which authorize the view that the proceedings of such a tribunal at the place of relocation are valid, and forbid litigating collaterally, by habeas corpus, the regularity of the removal.

“The foregoing views do not conflict with those expressed by Coulter v. Routt County Comr’s, 9 Colo. 258, 11 Pac. 199. A general law exists, as already suggested, providing that the district court shall be held at the county seat of the various counties. The special act considered in the Coulter case applied to the county of Routt alone. It provided for holding the terms of the district court at the town of Yampa, which was not and never had been a county seat. This court held that the act conflicted, in this respect, with the constitutional provision inhibiting special legislation ‘regulating county and township affairs.’ Thus it will be seen that the decision is not in conflict with the view that when the county seat itself is removed, though the removal be de facto merely, the place of holding the court may, under circumstances like these here presented, also be changed.”

See also Watts v. State, 22 Tex. 572; Robinson v. Moors, 25 Ill. 135; 11 Cyc. page 368 (4); 7 Am. & Eng. Cy. of Law, page 1045.

If there is any controversy concerning the county seat of Day county and the power of officials to transact public business at Grand instead of at Ioland, such controversy can be settled only in a direct proceeding for that purpose. Questions of this character have often been-before the courts; and it has been the universal holding that the judgment and conclusions of courts of record cannot be collaterally attacked upon the ground that the court at the time of the transaction of the business was not held at the county seat or place designated for -the holding of such court, unless the question is presented in the case and at the time of the hearing complained of. In this case, which is an action to recover upon the coupons of bonds of Day county, the execution of which was authorized by the judgment of the district court of said county, it is sought to question their validity because of the fact, as alleged, that the district court, when it authorized the execution of such bonds, was sitting at Grand instead of at Ioland. The recitations of the bonds, as well as the allegations of 'the journal entry authorizing their execution, show that the proceedings in the court, as a conclusion of which such bonds were authorized, were begun and had upon the application of the board of county commissioners of said county, and it appears that, pursuant to such proceeding and judgment, "certain judgments of record were funded into the bonds, the validity of which are here brought in question. It would be a proceeding at right angles with equity and justice to say that the county might institute a proceeding of this kind and carry it through the courts at Grand, and, after the statute of limitations had run against the judgments funded, defeat liability upon the bonds because the proceeding in court, which the county, through its board of commissioners, was a party to, was not held at Ioland. Such considera tion seems to illustrate the soundness- and justice in the rule of the courts that the judgment of a' court of record cannot be collaterally attacked, and can only be questioned by a proceeding in error, or by some authorized direct proceeding for that purpose. From these considerations we are of the opinion that the district court did not err in refusing to consider the defendant’s third ground of defense and in rendering judgment for the plaintiff notwithstanding the grounds of defense therein stated.

One other ground of defense, the fourth, as set forth in defendant’s answer, remains for consideration, which in substance is that the bonds issued were in excess of four per cent, of the-last assessed valuation of the taxable property in the county. The answer alleges that such valuation was $469,289.77, and that, considering the outstanding indebtedness of the county not funded, together with taxes levied and uncollected, and all other property, money, and resources belonging to said county July 10, 1900, not moré than $11,200.00 of the bonds of said county could, at that time, have been lawfully issued, and that, therefore, $5,600 of such bond issue was illegal and void. By this defense the defendant seeks to try over again a question that was of paramount importance and before the court for consideration when it authorized the issuance of the bonds July 10, 1900. The record shows that at the time the court authorized the issuance of said bonds it found that the amount, including outstanding indebtedness, did not exceed four per cent, of the assessed valuation of the taxable property of Day county, according to the last assessment valuation of the assessor of said county; and the question here presented is whether or not that question may be retried in this action for the purpose of defeating a part of the bond issue of July 10, 1900. Touching this question, this court, in the case of the Territory v. Hopkins, 9 Okla. 149, 59 Pac. 980, said: “The court having determined the validity of the bonds involved in this proceeding and having decreed that they are valid obligations and issued in strict conformity with the laws of this territory, and no objections or exceptions having been made to the issuance thereof, and no appeal having been taken therefrom, the decree and judgment of the court is, therefore, final and conclusive upon all matters put directly in issue, tried, and determined in that proceeding. This doctrine has been clearly annunciated and uniformly upheld by the decisions of the supreme court of the United States.” The soundness of this determination by this court is questioned by counsel for plaintiff in error, who base their conclusions upon the proposition that the district court, when hearing a question touching the issuance of funding bonds, does not reach a conclusion which in effect amounts to a judgment. If this is a correct conclusion, we can see no purpose in having the question of the issue of bonds brought before the court at all. Under the statute the court must hear and determine the question as to whether or not the issuance of such bonds are authorized under the law, and it would seem that when a court of competent jurisdiction has before it a legal question to determine, and has heard and determined that question, such determination, unappealed from, is thereafter res adjudicata.

.It is urged that the judgment of the court of July 10, 1900, authorizing the issuing of the funding bonds in question, was not a judgment in the sense in which that expression is used, and that there was no judgment until it was entered upon the order made nunc pro tunc. The finding of the court July 10, 1900, was embodied in a journal entry of that date and was signed by the judge hearing the case and recited the things that were found and determined. It was a judgment as to all the intents and purposes and upon all the questions submitted to and necessary of determination by the court in order to authorize the further action had, to-wit, the issuance of the bonds. It is true it was not that character of judgment which authorized or required an execution to issue for its enforcement, but it was nevertheléss a judicial de termination of the existence of facts necessary to the execution of the bonds, and which facts when determined were conclusively and finally determined, unless apealed Horn. Such determination cannot thereafter be attacked except for fraud or want of jurisdiction. Such judgment or conclusion was executed when the bonds were signed. The entry of the judgment upon the journal of the court at a subsequent date probably served no purpose other than to make the record of the court complete in that respect.

With these questions settled, was there such evidence before the court as to justify the rendition of a judgment upon the pleadings? That the plaintiff was an innocent purchaser of the bonds is not questioned. Such bonds and coupons were negotiable instruments and passed by delivery. They were past due when the action was brought and liability thereon was denied and payment refused. The petition of the plaintiff set forth the particular bonds the coupons sued on belonged to. The recitals in the bonds from which the coupons were taken were that they were issued pursuant to the laws of Oklahoma. They bore the unquestioned signature of the officials of Day county, together with that of the judge of the district court of that county, attested by the clerk and seal of the court; also, the endorsement on the back, by the territorial auditor, who certified such bonds to be legally and regularly issued in accordance with an act of the legislature of March 12, 1897. It has been the universal holding of the courts that where negotiable bonds or securities on their face import by recital a compliance with the law under which they were issued the purchaser is not bound to look further for evidence of compliance with the law authorizing their execution. In this case they were not only issued as the act of the officials of Day county, but, in addition, the bonds recite that they are issued as the act of the district court, and, therefore, go upon the market as instruments the authority to issue which has been judicially determined. As to the effect of such recitals, and the fact that the plaintiff in error is bound thereby, see 62 U. S. 539, Knox v. Aspinwell; 99 U. S. 86, Hackett v. Ottawa; 105 U. S. 342, Ottawa v. National Bk.; 103 U. S. 683, Walnut v. Wade; 89 Fed. 619, Waite v. Santa Cruz; 65 U. S. 287, Bissell v. Jeffersonville.

From the record before us it is apparent that the bonds to which the coupons in question belong, were regularly issued for. the purpose of funding the judgment indebtedness of Day county, that when issued they were authorized by the determination of the district court of Day county, that they have passed to the plaintiff, an innocent purchaser, and that the county is liable few the full face value thereof; and we conclude that the district court did not err in the rendition of the judgment complained of.

The judgment of the district court will, therefore, be affirmed.

Pancoast, J., who presided in the court below, not sitting; Irwin and 'Garber, JJ., absent; all the other Justices' concurring.