In an action at common law to recover from a municipal
organization upon a warranty issued by it, when the defendant
denies the execution of it, and sets up that it is a forgery, the
plaintiff, in order to be entitled to put the instrument in
evidence, and thereby make a
prima facie case, would be
compelled to prove its execution.
The Revised Statutes of Arizona of 1887, provide:
"735. (Sec. 87.) Any answer setting up any of the following
matters, unless the truth of the pleadings appear of record, shall
be verified by affidavit --"
"
* * * *"
"8. A denial of the execution by himself or by his authority of
any instrument in writing upon which any pleading is founded, in
whole or in part, and charged to have been executed by him or by
his authority, and not alleged to be lost or destroyed. Where such
instrument in writing is charged to have been executed by a person
then deceased, the affidavit will be sufficient if it state that
the affiant has reason to believe and does believe, that such
instrument was not executed by the decedent or by his
authority."
Held, that when the defendant did not verify his answer
in a case provided for therein, the note or warrant or, other paper
sued on was admitted as genuine, but when an answer denying that
fact was verified, the plaintiff must prove it as he would have to
do at common law in a case where the genuineness of the paper was
put at issue by the pleadings.
In September, 1891, Jacob Barth commenced an action in one of
the district courts of the Territory of Arizona against the Board
of Supervisors of Apache County, in that territory to recover upon
certain warrants which he alleged had been issued
Page 177 U. S. 539
by that county during the year 1884, and of which he claimed to
be the owner. Barth soon thereafter died, leaving a will, which was
proved in February, 1892, and by order of the court in March, 1896,
the action was revived in the name of Julia Barth, the appellee,
who was the executrix named in the will. She filed in March, 1896,
by leave of court, an amended complaint containing forty counts
upon as many different warrants, which she alleged had been issued
by the board of supervisors of the county on account of debts due
from the county, and of which warrants she was the owner, and that
the county owed her thereon an amount exceeding seven thousand
dollars, for which sum she duly demanded judgment, with interest. A
copy of each warrant was annexed to the complaint, and formed part
thereof.
The defendant filed an unverified amended answer to this amended
complaint, which answer was subsequently verified, and, among other
things, denied that any of the warrants sued on had ever been
issued or been directed to be issued by the Board of Supervisors of
the county or by the authority of that board, but, on the contrary,
defendant alleged that the pretended warrants sued on were, and
each of them was, falsely made and forged, and that they were, and
each of them was, a forgery, and that they were so falsely made and
forged with a fraudulent intent to defraud the County of Apache.
The defendant prayed judgment that plaintiff take nothing by her
action, and for costs and for general relief.
Other defenses were set up, among which was the statute of
limitations.
The case came on for trial before the court, a jury trial having
been waived, and the court, having decided it, signed a statement
of the facts found by it, in which it was stated that evidence had
been introduced upon the trial, both oral and documentary, and upon
the admission of the plaintiff the court found that the figures on
eleven of the warrants (duly described and identified) had been
altered and changed after they had been issued, and that such
alterations and changes vitiated and rendered null and void those
warrants as against the defendant, and that they were not valid
claims against the county. The
Page 177 U. S. 540
court then made a general finding that all of the other warrants
sued on were valid and subsisting legal claims against the county,
and that plaintiff was entitled to recover upon each warrant the
amount named therein, which, with interest, amounted to about the
sum of $14,000 and for that sum judgment was directed to be
entered, which was subsequently done. There was no further or
special finding made by the trial court.
From this judgment an appeal was taken by the county to the
Supreme Court of the Territory of Arizona, where it was
affirmed.
The supreme court at the time of affirming the judgment made and
signed by its chief justice a statement of facts in the case as
follows:
"The supreme court takes the facts as found by the district
court on the trial in that court and as shown by the record, and
makes them the statement of the facts in this cause."
"This Court finds that the district court did not commit error
in finding against the plea of limitation set up by appellant."
"The court further finds that the district court did not commit
error in granting and rendering judgment in favor of appellee on
the warrants sued on and against appellant, notwithstanding the
verified answer of appellant. The supreme court further finds that
the district court did not commit error in refusing to render
judgment for appellant on the verified answer of appellant,
notwithstanding appellee did not introduce any evidence to
establish the genuineness of said warrants for which appellee asked
judgment, because the court finds that the warrants were verity of
themselves, and the verified answer only put appellant in position
in court to prove the facts set up in her answer, and did not put
appellee on proof of their genuineness; hence the supreme court
finds as a conclusion that the judgment of the district court
should be affirmed. Judgment of affirmation and confirmation is
therefore ordered and directed."
"This June 11th, 1898."
The county has appealed to this Court from the judgment of the
supreme court of the territory.
Page 177 U. S. 541
MR. JUSTICE PECKHAM, after stating the facts, delivered the
opinion of the Court.
The statute approved April 7, 1874, c. 80, entitled "An Act
Concerning the Practice in Territorial Courts and Appeals
Therefrom," 18 Stat. 27, by the second section provides:
"That the appellate jurisdiction of the Supreme Court of the
United States over the judgments and decrees of said territorial
courts in cases of trial by jury shall be exercised by writ of
error, and in all other cases by appeal, according to such rules
and regulations as to form and modes of proceeding as the said
Supreme Court have prescribed, or may hereafter prescribe:
Provided, That on appeal, instead of the evidence at
large, a statement of the facts of the case in the nature of a
special verdict, and also the rulings of the court on the admission
or rejection of evidence, when excepted to, shall be made and
certified by the court below, and transmitted to the Supreme Court,
together with the transcript of the proceedings and judgment or
decree,"
etc.
The legislature of the territory passed an act in 1897 providing
as follows:
"SEC. 1. Whenever an appeal or writ of error is taken from any
district or circuit court of this territory to the supreme court of
the territory, the appellant or plaintiff in error, as the case may
be, may have the testimony taken in the case transcribed and
certified by the court reporter and file the same with the papers
in the case, and thereupon it shall become and be a part of the
record in such case."
"
* * * *"
"SEC. 5. All rulings made by the court below in opposition to
the plaintiff in error or appellant shall be taken as excepted to
by the party appealing or suing out the writ of error, and when
assigned as error in the brief shall be reviewed by the supreme
court without any bill of exceptions or other assignment of errors
as herein provided. "
Page 177 U. S. 542
This last act was passed subsequently to the trial of this
action, but immediately after the filing of findings herein, and,
pursuant to its provisions, the reporter's notes of trial, with his
certificate, were returned upon appeal, and are contained in this
record.
This act could give us no jurisdiction to review an objection to
evidence taken upon the trial, if no exception were taken, for the
act of Congress of 1874, above cited, provides for a review in this
Court only when the decisions of the court were excepted to, and
our jurisdiction is regulated by that act.
Grayson v.
Lynch, 163 U. S. 468,
163 U. S.
474.
Upon a review of a judgment in a case not tried by jury and
taken by appeal from the supreme court of a territory, this Court
is by statute restricted to an inquiry whether the findings of fact
made by the court below support its judgment, and to a review of
exceptions duly taken to rulings on admission or rejection of
evidence.
Grayson v. Lynch, 163 U.
S. 468,;
Bear Lake &c. v. Garland,
164 U. S. 1,
164 U. S. 18;
Harrison v. Perea, 168 U. S. 311,
168 U. S. 323;
Young v. Amy, 171 U. S. 179,
171 U. S.
183.
There is no bill of exceptions in the record, and there is
nothing to show that any exception was taken on the trial to the
admission or rejection of evidence. Counsel for appellee therefore
urges that the only inquiry before this Court is whether the facts
found by the trial court authorize the judgment which was entered,
and he claims that, upon those findings, there can be no question
that the judgment entered is right. This does not give the full and
proper force to the additional finding of facts by the supreme
court to which it is entitled. Although in that finding it is said
that
"the supreme court takes the facts as found by the district
court on the trial in that court, and as shown by the record, and
makes them the statement of the facts in this cause,"
yet a perusal of the statement made by the supreme court renders
it plain that such court found other facts in addition to those
adopted from the district court, and those facts found by it should
be regarded in the decision of this case.
What we regard as additional facts in the statement of the
supreme court are regarded by counsel for the appellee as
conclusions
Page 177 U. S. 543
of law only, and he contends that we are confined to the general
findings of fact made by the district court and adopted by the
supreme court, and that, upon those facts, the appellee is clearly
entitled to judgment. We cannot acquiesce in the correctness of the
claim so made.
The supreme court in its statement finds a conclusion of law --
viz., that the court below did not err in granting
judgment for appellee -- and this conclusion is immediately
followed by the declaration, "notwithstanding the verified answer
of the appellant," which latter is a statement of fact. In addition
to the fact thus stated, and in continuation of its statement, the
court
"further finds that the district court did not commit error in
refusing to render judgment for appellant on the verified answer of
appellant, notwithstanding appellee did not introduce any evidence
to establish the genuineness of said warrants for which appellee
asked judgment, because the court finds that the warrants were
verity of themselves, and the verified answer only put appellant in
position in court to prove the facts set up in her answer and did
not put appellee on proof of their genuineness; hence the supreme
court finds as a conclusion that the judgment of the district court
should be affirmed."
We do not think that all of this can be called a conclusion of
law only, and not a finding of any fact. It is too technical a
treatment of this statement to limit the finding of facts wholly to
those set forth in the finding of the district court.
If we were not in this particular limited to the findings of the
court, and could look at the notes of the stenographer taken on the
trial and attached to the record by virtue of the territorial act
referred to, we should there find that defendant was granted leave
to verify its answer before the plaintiff rested her case, and that
the answer was then verified and the plaintiff given opportunity to
put in such evidence as she chose after such verification was made
and before she closed her case. She did not avail herself of the
leave, and the case rests only upon the production of the warrants,
with the words indorsed thereon: "Not paid for want of funds;
Presented Dec. 31, 1884. D. Baca, Treasurer, A. Ruiz, Deputy. Sol.
Barth;" also with the word "Forgery" marked in red ink across the
faces of the warrants.
Page 177 U. S. 544
No proof whatever was given as to the genuineness of these
signatures.
The finding of the supreme court shows that its decision was not
placed upon the ground that the answer was verified after the
plaintiff had rested, nor was its finding put on any ground of
waiver. We must therefore take the fact that the answer was
verified in ample time to call upon the plaintiff to prove the
affirmative of the issues presented by the pleading.
Coming to an examination of the case in the light of these
facts, we see that this was an action brought upon certain county
warrants fully described in the amended complaint, and it was
therein alleged that they were issued under the direction and
authority of the Board of Supervisors of the county, signed by the
chairman, and countersigned by the clerk of the board. The answer
denied the fact that the warrants were issued by the authority or
direction of the board, and alleged that they were forged warrants
and that the county was not liable thereon. Irrespective of any
statute in regard to pleading, an issue was thus joined which
raised the question of the genuineness of the signatures subscribed
to these warrants -- in other words, the question of their
execution was put in issue, which would make it necessary for the
plaintiff to prove that fact before they could be admitted in
evidence. We are aware of no exception to this rule which would
permit the introduction of alleged county warrants such as these
without any proof whatever of their execution. They do not prove
themselves. The mere production of a piece of paper upon which is
written or printed a promise to pay upon the part of a county, and
upon which certain signatures appear, without the slightest proof
of the genuineness of such signatures, does not entitle such paper
to be admitted in evidence.
It is stated that it has been held by the courts generally that
county and state warrants signed by the proper officers are
prima facie binding and legal, that those officers will be
presumed to have done their duty, and that such warrants make a
prima facie cause of action, and that impeachment must
come from the defendant. 1 Dillon's Municipal Corporations, 3d
ed.,
Page 177 U. S. 545
sec. 502. This may very well be in regard to those warrants
when, as above stated, they have been, in fact signed by the proper
officers, and very probably the presumption may then be made that
those officers who are proved to have signed the warrants have done
their duty; but we are aware of no case where it has been held, in
the absence of a statute to that effect, that the mere production
of a paper upon which is written or printed an obligation of a
county, bearing certain names thereon, can be put in evidence
without the slightest proof that the signatures on the paper were
those of the persons they purport to be. No such case has been
called to our attention, and we think there is no principle upon
which such a holding could stand.
The cases referred to by counsel simply hold the burden of proof
shifted after there has been proof of the execution of the
warrants; that such proof makes out a
prima facie case
against the county. Such are the cases of
Commissioners &c.
v. Day, 19 Ind. 450, and
Commissioners of Leavenworth
County v. Keller, 6 Kan. 510. In both those cases, the
warrants were proved to have been signed by the proper authorities
of the county before they were admitted in evidence, and it was
said in the Indiana case, upon these facts, that
"the officer, in the discharge of his general powers, will be
presumed to have done his duty in drawing a warrant or order till
the contrary appears, and hence such order makes a
prima
facie cause of action,"
citing
Hamilton v. Newcastle & Danville Railway, 9
Ind. 359. And in the Kansas case it appeared that the county board
audited and allowed the bill of claimant, and that a county warrant
was drawn in his favor for the amount due, and signed by the
chairman of the board, and it was held that, upon those facts, an
action might be maintained on the warrant, but that it was liable
to be defeated by showing that the tribunal which issued it had no
authority to make the allowance on which the warrant was issued. In
other words, that proof being given of the signature of the proper
officer, the warrant was admissible in evidence and constituted a
prima facie case against the county, and any
Page 177 U. S. 546
facts going to show that no cause of action existed rested upon
the defendant to prove.
In
Grayson v. Latham, 84 Ala. 546, 549, 550, two county
warrants were sued on which were alleged and purported to have been
issued by the commissioners of the County of Pickens and signed by
the probate judge. In delivering the opinion of the court, Stone,
Chief Justice, said:
"The warrants declared on, issued and signed by the judge of
probate,
as they were shown to have been, prima facie
imported a liability on the county. . . . Upon the question we have
been discussing, the plaintiff made a
prima facie case
when he produced and proved his warrants, showed that they had been
registered, proved that, in the receipt and disbursement of county
funds, the time had arrived for their payment according to their
place on the registry, and that payment has been demanded and
refused, or, if payment was not shown to have been demanded, by
proving that demand would have been unnecessary. Making this
prima facie case, if made, the burden would then be
shifted to the defendants to overturn the presumption of
liability."
Another case relied upon to sustain the ruling of the courts
below is that of
Wall v. Monroe County, 103 U. S.
74. That case does not show that the warrants were
proved by their mere production; on the contrary, it appears that
the warrants were drawn by the clerk of the county upon the
treasurer in favor of one Frank Gallagher, and transferred by him
to the plaintiff. Their execution was alleged and proved, and the
question decided had no relevancy to the matter here under
discussion.
No case cited by counsel shows that there is anything peculiar
to a paper in the form of a county warrant, which proves itself
upon mere production.
It is clear, then, that at common law, in an action upon such an
instrument, and upon a pleading denying the execution thereof by
the defendant, and setting up its forgery, the plaintiff in order
to be entitled to put the instrument in evidence, and thereby to
make a
prima facie case, would be compelled to prove its
execution. The question is what difference the statute of Arizona
makes in this rule.
Page 177 U. S. 547
The Revised Statutes of Arizona, 1887, provide:
"735 (Sec. 87). Any answer setting up any of the following
matters, unless the truth of the pleadings appear of record, shall
be verified by affidavit: --"
"
* * * *"
"8. A denial of the execution by himself or by his authority, of
any instrument in writing upon which any pleading is founded, in
whole or in part, and charged to have been executed by him or by
his authority, and not alleged to be lost or destroyed. Where such
instrument in writing is charged to have been executed by a person
then deceased, the affidavit will be sufficient if it state that
the affiant has reason to believe and does believe that such
instrument was not executed by the decedent or by his
authority."
The answer in this case did deny the execution on behalf of the
county of these warrants, and alleged that they were forgeries made
to defraud it. The affidavit of verification was made by the clerk
of the board of supervisors, who swore that the facts stated in the
answer, as defenses to the various causes of action declared on,
were true, and that the warrants sued on were not genuine. The
statute does not require that the affidavit should contain a denial
of the execution of the instrument on which suit is brought. It
requires that any answer which contains a denial of the execution
of an instrument shall be verified, and the verification in this
case is not open to the objection of insufficiency urged by the
appellee.
We have, then, the fact as stated by the supreme court of the
territory that this answer was verified, and that the appellee did
not introduce any evidence to establish the genuineness of the
warrants sued on, and as a conclusion of law from those facts the
court held the plaintiff entitled to judgment on the ground that
the verified answer did not put the plaintiff to proof of the
genuineness of the warrants.
It seems plain to us that the court did not give that force to
the verification of the answer which it was entitled to, and that,
by reason of such verification the defendant was not only put in
position to prove the facts set up in the answer, but the
plaintiff
Page 177 U. S. 548
in the action was thereby compelled to prove the execution of
the warrants by the proper officers of the county.
Statutes similar to this have been passed in other states, and
it has been held in Colorado, in
Lothrop v. Roberts, 16
Colo. 250, 254, that an answer denying the execution of a note,
under oath, made it necessary for the plaintiff to give proof of
its execution before the note was properly admissible in
evidence.
In
Horn v. Volcano Water Co., 13 Cal. 62, under a
somewhat similar statute, where the answer was a general denial
without verification, the genuineness and due execution of the note
sued on were regarded as admitted.
To the same effect is
Corcoran v. Doll, 32 Cal. 82, 88,
where it was stated that the action being upon a note, and the
complaint containing a copy, and the answer not verified, the due
execution of the note was admitted.
In
Shepherd v. Royce, 71 Ill.App. 321, under a similar
statute, it was held that the effect of the verification of the
plea setting up the forgery of a note sued on was to cast upon
appellant the burden of proving the execution of the note as at
common law, citing
Wallace v. Wallace, 8 Ill.App. 69.
The Michigan courts have decided in the same way upon the same
kind of a statute.
Ortmann v. Merchants' Bank, 41 Mich.
482;
New York Iron Mine v. Citizen's Bank, 44 Mich.
344.
We have no doubt that the effect of the statute of Arizona is
that, when the defendant does not verify his answer in a case
provided for therein, the note or warrant or other paper sued on is
admitted as genuine, but when the answer denying that fact is
verified, the plaintiff must prove it as he would have had to do at
common law in a case where the genuineness of the paper was put at
issue by the pleadings.
Upon the facts found by the district judge and accepted by
the supreme court of the territory in this case, and upon the
additional facts found by that court, we are of opinion that the
judgment entered under its direction is erroneous and not warranted
by those facts, and therefore it is reversed, and the case
remanded, with directions to grant a new trial, and it is so
ordered.
