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No. 11 is attached hereto, marked Exhibit B, annum from July 10, 1903, with interest on except as to numbering. A true copy of bond $183.00 thereof at the rate of 7 per cent. per No. 18 is attached hereto, marked Exhibit C, annum from January 10, 1904, with interest and made a part of this petition. That the on $183.00 thereof at the rate of 7 per cent. bonds so purchased as aforesaid are the prop per annum from July 10, 1904, with interest erty of this plaintiff, and the plaintiff is en on $183.00 thereof at the rate of 7 per cent. titled to the interest thereon. The said bonds per annum from January 10, 1905, with inwere issued with interest coupons attached, terest on $183.00 thereof at the rate of 7 payable semiannually, bearing 6 per cent. in- | per cent. per annum from July 10, 1905, and terest, and the defendant has paid with rea for costs of this suit. C. C. Coleman, Attorsonable promptness to this plaintiff all inter ney General of Kansas, and John S. Dawson, est coupons on the aforesaid bonds so pur Attorneys for Plaintiff.” chased for its agricultural college endow

Exhibit A. ment fund up to and including the interest

“ "In the District Court, Fifth Judicial Discoupons pertaining to the aforesaid bonds 11, 12, 13, 14, 15, 16, and 18 which matured on

trict, and for Day County, Oklahoma Terri

tory. In the Matter of the Funding of the July 10, 1902; and the defendant has made default in payment of all the interest coupons

Judgment Indebtedness of the County of Day of said bonds numbered 11, 12, 13, 14, 15, 16,

and Territory of Oklahoma. and 18 aforesaid, which have matured since

"Journal Entry. July 10, 1902, and the defendant has refused, "Now, on this 10th day of July, A. D. 1900, and still refuses, to pay the same.

this matter came on to be heard, by the court "First Cause of Action.

upon application of the board of county com

missioners of said county to make a showing "Plaintiff refers to the allegations of this

and have the court determine the amount of petition herein above set forth, and makes

the judgment indebtedness of said county them all a part of this its first cause of action, and says: That on January 10, 1903,

and sign the judgment funding bonds to be

issued for paying same, and the board of the interest coupon, No. 5, of the aforesaid

county commissioners of said county, and the bond No. 11, the same being the property

county clerk thereof and by the county atof the plaintiff, became due, and defendant

torney of said county, and by counsel and made default; and demand was duly made

the following judgment creditors by counsel, for its payment, and defendant refused and

to wit, Charles S. Hinchman, F. M. Hubbell, still refuses to pay the said coupon. A true

George Theis, Jr., and A, Ferguson. And the copy of said coupon is in words and figures

clerk of the district court, and the sheriff as follows:

of Day county, being present, and the publi$30.00.

Day County,
Oklahoma Territory.

cation notice required by statute being here Day County, Oklahoma Territory, will made and approved. And the evidence havpay to bearer the sum of thirty ($30) Dol ing been heard by the court, the court finds lars, on the 10th of January, 1903, at the

the amount of judgment indebtedness of said Fiscal Agency of the territory of Oklahoma, in the city and state of New York. Day county to be the sum of $16,738.23, In the event of the discontinuance of said which is wholly unpaid and owing to the place, then at the Chemical Național Bank several judgment creditors as follow's, to in said city and state, for semi-annual in

wit: terest, due on that date, on its judgment funding bond. Dated July 10, 1900. Charles S. Hinchman.

$10,170 37 No. 5. F. M. Hubbell.....

5,8-1.5 60 Edson L. Mead, Cosmo Falconer, George Theis, Jr...

618 40 County Clerk. Ch’m B'd Co. Com. A. Ferguson.

103 86 "Wherefore, there is due this plaintiff from "And the court further finds that said the defendant, on this cause of action, the judgment creditors, and each of them, and sum of thirty dollars on said coupon, and in said board of county commissioners of said terest thereon at seven per cent. per annum | Day county, have agreed that bonds should since the maturity of said coupon set out in be issued by said board of county commisthis cause of action."

sioners of said Day county and accepted by IIere follow causes of action numbered the creditors in satisfaction of said judgfrom second to forty-second, inclusive, of the ments, doliar for dollar, and that publicasame general character as the first cause of tion of notice required by statute prior to action, and the petition continues thus : the application to issue said bonds has been

"That the aggregate sum of all the inter duly made, and that one-third of the judgest coupons due and unpaid as aforesaid in ment indebtedness of said county cannot be plaintiff's several causes of action above set paid from the sinking fund in any one year forth against this defendant is $1,098.00. | by a levy of five mills on the dollar, as Wherefore, plaintiff prays judgment against shown by the last preceding assessment of said defendant in the sum of one thousand said county. And the court further finds ninety-eight dollars, with interest on $183.00 | that all things precedent to the issuance of thereof at the rate of 7 per cent. per annum said bonds have been duly done and perfrom January 10, 1903, with interest on formed. And the court further finds that $183.00 thereof at the rate of 7 per cent. per the amount of outstanding bonded indebted

TIIIRTY DOLLARS.

ness to be the sum of $3,000.00, and the the hereto attached and foregoing papers amount of outstanding legal judgment in are a true and correct copy of all the papers on debtedness to be the sum of $16,738.23. The file in my office in the matter of the issuance court further finds that the aforesaid bond of judgment funding bonds in the amount ed indebtedness and the above void judgment of $16,738.23, by Day county, Oklahoma, and, indebtedness does not exceed four per cent. further, that the sworn statement, as made of the assessed valuation of the taxable prop by the county clerk to this office, shows the erty of said Day County according to the total outstanding indebtedness of said county last assessment valuation of the assessors for | amounts to $19,800 and the assessed valuasaid county, and the bonds being presented, tion to $301,150. I further certify that the form and amount duly signed by the chair omission of the judge's signature to the colly man of the board of county commissioners of the findings hereto attached was a mistake. of Day county and by the county clerk of In testimony whereof, I have this day set my said county, the court is satisfied that they hand and affixed the official seal of my office, are of the class and character authorized by at Guthrie, Okl., this 31st day of July, 1.300. statute, and said bonds are approved in form, "[Seal.] S. N. IIopkins, Auditor, classes and amounts, and therefore said

By E. P. McCabe, Deputy Auditor." bonds are signed by the judge of said court to the amount as evidenced by the face there

Exhibit B. of ($ 16,738.23) sixteen thousand seven hun

“United States of America. Territory of dred thirty-eight and twenty-three one-hun

Oklahoma. dredths dollars, and said bonds being signed

"No. 11.

1,000 Dollars. are delivered to the county treasurer of said

"Day County Judgment Funding Bond. county in open court, and the same are re

"Know all men by these presents. That ceipted for to the judge of said court.

the county of Day, in the territory of Okla"John L. McAtee, Judge.

homa, acknowledges itself to be indebted, "Attest:

and for value received hereby promises to "J. P. Renshaw, Clerk District Court,

pay to the bearer the sum of one thousand “By O. H. Richards, Deputy."

dollars ($1,000), lawful money of the United “Territory of Oklahoma, Day County-ss. : States of America, on the tenth day of July,

“I, J. P. Renshaw, clerk district court of A. D. 1910. However, this boud is subject to the Fifth judicial district of the territory of call and payment at any time at the option Oklahoma, do hereby certify that the within of said county, together with interest on said and foregoing to be a full, true and complete į sum from date hereof, until paid at the rate copy of the original journal entry in the mat- i of six per centum per annum, payable semiter of issuing bonds in said county on the annually on the tenth days of January and 10th day of July, 1900, as the same now ap July, respectively, in each year, upon presenpears on file and record in my office, in the tation and surrender of the interest coupons town of Grand, county of Day, and territory hereto attached, as they severally become of Oklahoma. Witness my hand and official due, both principal and interest payable at seal, at my office at Grand, in the county the Western National Bank, in the city of of Day and territory of Oklahoma.

New York and state of New York, and for "J. P. Renshaw, Clerk District Court, the prompt payment of this bond, with inter

“[Seal.] 0. Il. Richards, Deputy.” est as aforesaid, at maturity, the full faith “Office of Edson L. Mead, County Clerk,

and credit of said eounty of Day, in the terDay County.

ritory of Oklahoma, is hereby irrevocably “Territory of Oklahoma, Day County-ss.:

pledged.

"This bond is issued by the said county of "I, Edson L. Mead, county clerk in and for

Day, aforesaid, for the purpose of funding Day county, Oklahoma, do hereby certify

and paying valid and existing outstanding that the assessed valuation of the taxable

judgments recovered against said county, in property in and for said county as shown by

the courts of competent jurisdiction within the last assessment of aid county amounts

the said territory of Oklahoma, and having to the sum of ($301,156.00) five hundred and one thousand one hundred and fifty-six dol

jurisdiction both of the person of said coun

ty and of the subject matter of the actions lars; and that the total amount of outstand

prosecuted against said county, resulting in ing indebtedness of said county of Day, from

the rendition of said judgments, and is issuall sources, amounts to ($19.800.00) nineteen thousand eight hundred dollars. Given un

eu by virtue of the authority conferred by

article 11, chapter 5, of the Session Laws of der my hand, whereunto I have affixed the

the territory of Oklahoma for the year 1897, seal of my office, this 10th day of July, A. D.

being an act of the territorial assembly of 1900.

said territory, entitled 'An act providing for Edson L. Vead,

the issuance of bonds in payment of judg“[Seal.] County Clerk of Day County."

ments against counties and other municipal "Territory of Oklahoma. County of Lo

corporations,' approved on the 12th day of gial-SS.:

March, 1897, and subject to its provisions. "!, S. M. Hopkins, auditor in and for the And it is hereby recited, certified and warterritory of Oklahoma, do hereby certify that ranted that all acts, conditions and things re

quired to be done precedent to and in the each year, at the Western National Bank, in issuing of this bond have been properly done the city of New York and state of New York.” and performed in regular and due form required by law; and that said county hils

Exhibit C. duly proved to the satisfaction of the dis

“United States of America, Territory of trict court of the county of Day and territory

Oklahoma. of Oklahoma, the existence, validity, force "No. 18.

100 Dollars. and legality of said judgment indebtedness;

"Day County Judyinent Funding Bond. And that the said judgment indebtedness re

"Know all men by these presents: That the mains unpaid at the date of the issuance of

county of Day, in the territory of Oklahoma, this bond; and that an agreement has been

acknowledges itself to be indebted, and for made for the settlement of such judgments by

value received promises to pay to the bearer, the issuance of this bond; and that all other

the sum of one hundred dollars ($100). law. requirements of the said act aforesaid, to

ful money of the United States of America, gether with all other requirements of law in

on the tenth day of July, A. D. 1910. Howthe premises, have been duly complied with in

ever, this bond is subject to call and payment the issuance of this bond; and that no con

at any time at the option of said county, togressional or statutory limitation of the

gether with interest on said sum from the amount of the indebtedness of said munic

date thereof. until paid, at the rate of six ipality is exceeded by this issue.

per centum per annum, payable semi-annually "In witness whereof, the said county of

on the tenth days of January and July, reDay and territory of Oklahoma has caused

respectively, of each year, upon presentation this bond to be signed by the chairman of its

and surrender of the interest coupons herero board of county commissioners and its cou

attached, as they severally become due, both ty clerk, under the seal of said county, this

principal and interest payable at the Western tenth day of July, A. D. 1900, and the Hon

National Bank, in the city of New York and orable John L. McAtee, the judge of the dis

state of New York, and for the prompt paytrict court of said county in open court, as

ment of this bond, with interest as aforesaid, the act of said court, has also signed these

at maturity, the full faith and credit of said presents on the said day and date.

county of Day, of the territory of Oklahoma, "Cosmo Falconer,

is hereby irrevocably pledged. "Chairman of the Board of County Commis "This bond is issued by the said county sioners.

of Day, aforesaid, for the purpose of funding Attest: Eilson L. Mead,

and paying valid and existing outstanding Seal.]

County Clerk.

judgments recovered against said county, in "Signed in open court by the district court

the courts of competent jurisdiction within of the county of Day, Oklahoma Territory,

the said territory of Oklahoma, and having this tenth day of July, A. D. 1900.

jurisdiction both of the person of the said “Jno. L. McAtee,

county and of the subject matter of the ac"Judge of the District Court of Day County.

tion prosecuted against said county, resulting Attest: J. P. Renshaw,

in the rendition of said judgments, and is "Clerk of the District Court of Day County,

issued by virtue of the authority conferred “[ Seal.] By 0. H. Richards, Deputy."

by article 2. chapter 55, of the Session Laws Indorsed on the back thus:

of the territory of Oklahoma, for the year "Territory of Oklahoma.

1897, being an act of the territorial as"Otlice of the Territorial Auditor.

sembly of said territory, entitled 'An act

providing for the issuance of bonds in pay"I, S. Y. Hopkins, auditor of the territory

ment of judgments against counties and other of Oklahoma, do hereby certify the within

municipal Corporations,' approved on the 12th bond to be legally and regularly issued, and has been registered in my office this day,

day of March, 1897, and subject to its provi

sions. And it is hereby recited, certified and pursuant to all act of the legislative assem

warranted that all acts, conditions and things bly of the territory of Oklahoma, entitled,

required to be done precedent to and in the 'An allt providing for the issuance of bonds

issuing of this bond have been properly done in payment of judgments against counties and other minicipal corporations,' approved

and performed in regular and due form re

quired by law; and that the said county has March 12, 1897. Witness my hand and otli

duly proved to the satisfaction of the district cial seal, done at my office in the city of Guthrie, Oklahoma Territory, this 12th day

Court of the county of Day and territory of of July.

Oklahoma, the existence, validity, force and

legality of said judgment indebtedness; and "S. X. Hopkins Territorial Autor,

that the said judgment indebtedness remains "Scal.] By E. P. Mc'alie, Deputy.”

unpaid at the date of the issuance of this Also indorsel on back thus:

boud; and that in agreement has been made "No. 11, Day (ounty, Oklahoma Territory, for the settlement of -16h judgments by the julement funding bond 1.000 dollars. Dated issuance of this bond; and that all other reJuly 10, 1900, due July 10, 1910). Interest 6 quirements of the said act aforesaid, together per cent. per annum. payable semi-annually with all other l'equirements of law in the ou the tenth days of January and July of premises, have been fully complied with in

the issuance of this bond; and that no con claimed to be the owner, were not issued purgressional or statutory limitation of the suant to any law or authority of the terriamount of the indebtedness of said munici tory of Oklahoma, and were at all times and pality is exceeded by this issue.

now are illegal and void and are not a bind"In witness whereof, the said county of ing obligation against this defendant. The Day and territory of Oklahoma has caused defendant alleges that on the 10th day of this bond to be signed by the chairman of July, 1900, the district court of the terriits board of county commissioners and its tory of Oklahoma was not in session, open county clerk, under the seal of said county, or otherwise, and there was no sitting of this tenth day of July, A. D. 1900, and the the said court in said county in the month of Honorable John L. McAtee, the judge of the July, 1900, and that no judgment indebteddistrict court of said county, in open court,

ness of said Day county, and particularly as the act of said court, has also signed these the indebtedness mentioned in Exhibit A presents on the said day and date.

to plaintiff's petition were proved by the "Cosmo Falconer,

defendant before the district court of said “Chairman of the Board of County Commis- | Day county, nor did the judge of said court sioners.

thereof, in open session or otherwise, on the “Attest: Edson L. Mead,

10th day of July, 1900, or at any other time, [Seal.]

County Clerk. find any amount of judgment indebtedness "Signed in open court by the district of said county to exist, and have effect and court of the county of Day, Oklahoma Terri- be in force against the said county; and tory, this tenth day of July, A. D. 1900. that said district court nor the judge there"Jno. L. McAtee,

of did not, on the said day, to wit, July “Judge of the District Court of Day | 10, 1900, nor at any other time, in open sesCounty.

sion of said court, nor at all cause to be "Attest: J. P. Renshaw,

made on the record of said court, a state"Clerk of the District Court of Day County,

ment and findings of the evidence of any "[ Seal.] By 0. H. Richards, Deputy." judgment or judgments, and the said county

by and through its board of county comIndorsed on back thus:

missioners in which the holders of said "Territory of Oklahoma, Office of the

judgments agreed to accept, and the said Territorial Auditor.

county agreed to have issued, the bonds in “I, S. N. Hopkins, auditor of the territory question in payment of said judgments or of Oklahoma, do hereby certify the within any of them in settlement of said judgments bond to be legal and regularly issued, and has or any of them before the signing of said been registered in my office this day, pur bonds by the judge of the said district court, suant to an act of the legislative assembly nor at any other time, and that the said of the territory of Oklahoma, entitled 'An judge of the district court of said county act providing for the issuance of bonds in

was at the time of the signing of sail bonds, payment of judgments against counties and and at all times prior and subsequent thereother municipal corporations,' approved March to, without authority or jurisdictioc to sign 12, 1897. Witness my hand and official seal, the same. done at my office in the city of Guthrie, Okla "For a third and further defense defendhomna Territory, this 12th day of July.

ant says that at all times mentioned in "S. N. Hopkins, Territorial Auditor. plaintiff's petition the county seat of Day "[Seal.] By E. P. McCabe, Deputy." county, Oklahoma Territory, was legally at Also indorsed on back thus:

Ioland, where the same had been established "No. 18. Day county, Oklahoma territory,

by the Congress and the Secretary of the judgment funding bond. One hundred dol

Interior of the United States, and that the lars. Dated July 10, 1900, due July 10, 1910.

district court of said county could only be Interest 6 per cent. per annum, payable

legally held at said county seat, and that semi-annally on the tenth days of January

all notices and proceedings had about the and July of each year, at the Western Na

issue of the bonds in question or other bonds tional Bank, in the city of New York, and

should have been given from and referred state of New York."

to the said loland, the county seat of said To which petition the defendant answered county. That there was no term of the disas follows:

trict court in the year 1900 held at said lo“The defendant comes, and for his answer land, the county seat of said county, nor was to the plaintiff's petition filed herein denies any notice given of any bonding proceedings each and every allegation therein contained, nor the funding of any judgment indebtedand not hereinafter admitted.

ness of said county into bonds to be had at "For a second and further defense to plain said county seat. That no proof was made betiff's petition, the defendant alleges that fore the judge of the district court, in open the bonds numbered 11, 12, 13, 14, 15, and court or otherwise, in said Iolan?, the coun16, and 18, and the interest coupons thereto, ty seat of the said Day county, of any judgat the time attached, and of which the plain ment indebtedness against said county, nor tiff at the time of bringing of this action were any bonds issued or sigsed by the

chairman of the board of county commissioners of said county at Ioland, in the county of Day, on the 10th day of July, 1900, or at any other time. That no finding was made by the district court of said county nor the judge thereof, in open session or otherwise, of any judgment indebtedness against said county of Day, and which he caused to b: entered upon the record of said court at Ioland, the county seat of said county, or other place therein, and that all said bonds are void, and were at all times since their pretended issue. That the coupons sued upon herein are for interest accrued upon the principal bonds claimed to be held and owing by the plaintiff. That they derived their validity, if any, from the validity of the parent bond from which they were clipped.

“For a fourth and further defense, the defendant says that in the month of July, 1900, the last-assessed valuation of the property of said county for taxes was $469.289.77. That four per cent. of said amount is $18,771.54, and said last-named sum was the limit for which said county could become indebted in said year. That at the time of the pretended issue of said bonds in question, there were outstanding bonds of said county in the sum of $7,500.00, exclusive of interest, and warrant indebtedness in the sum of $5,700.00. That said bonds and warrants were legal and valid issue of said county and part of its indebtedness. That at the time of the issue of the bonds in question, $10,800.00 were issued legally or illegally, and upon the coupons for interest of six of said bonds plaintiff seeks to recover in this action. That of moneys in the treasury of said county and belonging thereto, taxes levied and uncollected and all other property, money and resources belonging to said county at the time of the issuance of said bonds on July 10, 1900, was the sum of $5,700.00, and deducting said amount from the bond and warrant indebteilness of said county as aforesaid, the said county could only have issued on said date, to wit, July 10, 1900, bonds to the amount of $11,200.00, whereas the said county issued $16.800.00 in bonds, which amount exceeded the amount the county might have issued, $5,600.00, and that $5,600.00 of said bonds are illegal and void. Defendant further says that because of the facts aforesaid the said county coull not, at the time of the issue of the bonds in question, legally issue to exceed $11,200.00 of the bonds of said county and that the excess of said amount, to wit, $5,600.00, was and is illegal and void for being in excess of four per centum of the last-assessed valuation of the property of said county for taxation preceding the issue of Said bonds, and that said amount of illegal issue affects and enters into each of the bonds of said issue, and should be apportioned to and among each and all said bonds. That defendant makes the second count of this answer a part of this count.

91 P. 45

"For a fifth and further defense, and by way of cross-petition against the plaintiff, the defendant says that it has paid, and the plaintiff has received, interest paid on the seven bonds it holds and which are described in its petition, the sum of $122.00; that said interest payments were made under the mistaken belief of the defendant that the bonds on which it was paid were legal and binding obligations of the said county of Day for their face value; and that, since the discovery by the defendant that said bonds were illegal in whole or in part, the defendant has not paid any interest upon the same. The defendant says that it makes the second and fourth counts of this answer a part of this count.

"Wherefore, the defendant prays judgment against the defendant that the interest coupons sued on be decreed and adjudged illegal and void, and the petition of plaintiff be dismissed, and that the defendant recover the interest heretofore paid on said bonds in amount $122.00, and that, if said bonds be found in part legal and part illegal, the defendant have judgment that the interest paid on the amount of said bonds found to be illegal be credited on the interest due and owing thereon, for costs, and all other proper relief.

"E. S. Sharp, County Attorney,
"Cowgill & Dunn,

"Attorneys for Defendant. To which answer plaintiff replied as follows:

"Comes now the plaintiff, and, after leava of court first had and obtained, filed its amended reply to the defendant's answer in this cause. First, plaintiff denies each and every allegation in defendant's answer so far as the same are inconsistent with the allegations of plaintiff's petition. Second, replying further to defendant's answer, plaintiff says that it relied implicitly and absolutely upon the recitals in the bond to which the coupons in controversy pertain, and relied implicitly and absolutely on the recitals on the back of the bond as certified by the auditor of Oklahoma Territory."

After the issues in the cause were joined as heretofore shown, the cause coming on to be heard, the plaintiff filed the following motion for judgment pon the pleadings: "Comes now the said plaintiff, the state of Kansas, and exhibits to the court the peti. tion of the said plaintiff, the answer of the said defendant, and the reply of the plaintiff thereto, and shows to the court that the said petition of the plaintiff alleges and sets forth a good and valid cause of action against said defendants; and that all the allegations, averments and statements of the said answer are not sufficient to constitute any defense against the said cause of action of the plaintiff ; that it appears from the said petition and answer that the sạid defendant has no good, valid and sutlicient defense io the

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