# Smith v. Sac County

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## Dissenting Opinion

    Clifford
United States Supreme Court
78 U.S. 139
Smith v. Sac County
ERROR to the Circuit Court for the District of Iowa.
Samuel Smith sued the County of Sac, Iowa, on certain interest coupons attached to bonds purporting to have been issued by the county for the erection of a court-house.
According to the form of pleading in the Iowa courts, by petition and answer, which is adopted in the Circuit Court for that district, the plaintiff set out in a petition the adoption by vote of the people of the county, at a special election held July 7th, 1860, of a proposition submitted to them by the county judge, providing for the erection of a court-house, to cost $10,000, and the issuing of the bonds to that amount, &c.; that the proposition and the result of the vote thereon were duly recorded as required by law; that the bonds with coupons were issued accordingly; and after describing, by number and otherwise, twenty-five of the coupons, averred that the plaintiff was the owner and holder of them, that he received them in good faith before maturity and paid value therefor, and that the same are valid and legal claims against the county. Copies of the proposition submitted, the record of the vote thereon, and the bonds and coupons were made part of the petition. The bonds were payable to bearer, signed by the county judge, and with the county seal affixed, and recited on their face that they were 'issued by the said county, in accordance with a vote of the legal voters thereof, at a special election holden on Saturday, the 7th day of July, A. D. 1860, pursuant to a proclamation made by the county judge of said county, according to the statutes of the State of Iowa in such case made and provided, for the purpose of erecting a court-house in Sac City, the county seat of said county, as per said proclamation.' The concluding clause reads thus:
'In witness whereof, I, Eugene Criss, county judge of said County of Sac, have hereunto affixed my name, and caused the seal of Sac County to be attached, at Sac City, this first day of October, A. D. 1860.'The coupons were payable to the holder, and signed by the county judge. The answer opened thus:
'The defendant for answer denies that any such election as is set out in the petition was called or held; denies that the electors of said county (a majority of them) are in favor of building a court-house and issuing bonds in payment therefor; denies that any such bonds or coupons were issued, or any such contract let for building a court-house; denies that the county judge had any authority to call such election, or make such contract, or issue such bonds or coupons; defendant further denies each and every allegation in plaintiff's petition.'
Various statements, intended to defeat the claim, were then made.
It was stated by counsel at the bar, that the Revised Code of Iowa enacts that an answer shall contain 'a general denial of each allegation of the petition, or else of any knowledge or information thereof, sufficient to form a belief, OR a specific denial of each allegation of the petition controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief. And also enacts that every material allegation of the petition, not controverted by the answer, must for the purposes of the action be admitted to be true.'
The case was submitted to the court, under the act of Congress authorizing the trial of issues of fact in the Circuit Courts, by the court, without a jury, and which provides that 'the finding of the court upon the facts, which finding may be either general or special, shall have the same effect as the verdict of a jury;' and further, that
'When the finding is special, the review may also extend to the determination of the sufficiency of the facts found to support the judgment.'
The court, on the evidence, found as the facts:
'1st. That an order and proclamation was made by Eugene Criss, county judge of Sac County, for submitting to the vote of the people of the county, 'whether or not a court-house should be erected in the same, to cost $10,000, in bonds, &c., and whether or not a tax should be levied,' &c., as the same was alleged in the plaintiff's petition.
'2d. That an election was held on the 7th July, 1860, in pursuance of the said order and proclamation; and that the proposition was adopted by a majority of the votes cast at said election.
'3d. That the proposition and order for the submission of the same, together with a statement of the result of the election, was afterwards, by and under the direction of the said county judge, entered and recorded at large in the office of the said county judge in the 'Minute-Book' of the county judge and county court.
'That by the said record entry the said order for the submission of the said proposition to the vote of the people purported to have been made at a session of the county court on the 4th day of June, A. D. 1860; but that the said record was not in fact made and entered in the 'Minute-Book' at that time, nor until after the execution and delivery of the bonds, as hereinafter found; and that the said order was entered in said 'Minute-Book' in June, 1861, after the said county judge had ceased to have any power or jurisdiction over the financial business of the county.
'4th. That the said county judge of said county, having entered into a contract in behalf of said county, with one W. N. Meservy, for the erection by the said Meservy of a court-house in and for said county, did execute, October 1st, 1860, in behalf of the county, by affixing thereto his signature as such county judge, and the lawful seal of said county, and deliver to Meservy, in pursuance of the terms of the contract, ten bonds, purporting to be the bonds of the county, dated, &c., and coupons annexed, for the annual instalments of interest to grow due thereon as aforesaid, being for one hundred dollars each, and payable to bearer at said bank, or receivable for taxes at the county treasury of said county, at the option of the holder. Said bonds and coupons were all expressed in the same words and figures as set forth in the plaintiff's petition.
'5th. That the said county judge in fact signed, sealed, and delivered said bonds and coupons as aforesaid at Fort Dodge, in the County of Webster and State of Iowa, and not within the County of Sac; and that the contractor, Meservy, gave one of said bonds for $1000 as a gratuity to the county judge as soon as the same were delivered by said county judge to said Meservy; and no court-house was in fact ever built by said contractor, or any other person, in pursuance of said contract.
'6th. That the plaintiff, Smith, was, at the time of commencing this action, and still is, the holder and owner of twenty-five of the coupons, being those declared on; that he became such holder, by transfer thereof to him before maturity, and after the entry of said proceedings in the 'Minute-Book,' as hereinbefore found; that the said coupons were, at the commencement of this action, and still were, wholly unpaid.
'And, as matter of law 'arising upon, and resulting from the facts hereinbefore found,' the court was of opinion and adjudged that the said bonds and coupons were wholly void as against the said County of Sac, and that the defendant was entitled to judgment.'
To this opinion and judgment the plaintiff excepted.
On the case coming here the point was raised whether a finding that the plaintiff had had value for his bonds was not indispensable to sustain the judgment. There was not, as will have been observed, any finding of that fact, nor did the record present evidence to show it.
Mr. J. N. Rogers, for the plaintiff in error (after remarking upon the insufficiency of the answer to raise the question or put in issue the facts of good faith and consideration paid for the bonds):
It is sufficiently obvious, from the very terms of this adjudication, that the question whether or not the plaintiff was a holder in good faith and for value did not in fact at all enter into the decision of the case in the mind of the judge who pronounced it; but that he held the bonds to be 'wholly void as against the said county,' irrespective of the attitude of the holder.
The question now arises, however, whether this court can import into the special finding, by intendment, the additional fact that plaintiff is not a holder in good faith and for value, on the ground that fraud in the issue of the bonds is found; that this cast on the plaintiff the burden of proving himself to be a holder for value without notice; and that the verdict does not find affirmatively that he was such holder.
Can the verdict be thus aided by intendment?
Assuming, for the purposes of the argument (what, however, is not law), that a special verdict can supersede the necessity of a plea, and by specially finding matter of defence not pleaded, and therefore not in issue, entitle a defendant to judgment thereon; and further assuming (what is not the case), that the facts found do amount, as mere matter of law, to fraud, and not merely to evidence tending to show fraud, we submit that a plea of such fraud, had one been interposed, would have been fatally defective on demurrer, if it did not contain an allegation that plaintiff took with notice, or without giving value. What, then, it is necessary that the plea should allege, is it not equally necessary that the verdict should find? Otherwise, one-half of the issue, as material as the rest, is left undetermined on the record. How it would have been determined, had it been determined at all, this court, on error, cannot say. The rule as to the burden of proof is merely a rule of evidence to govern the court or jury on the trial in making up the verdict. It cannot supply the place of or supply defects in the verdict. There is no legal certainty that, because a fact is not specifically found in a special verdict, it was not proved. Hence arises the absolute necessity for the rule, which the authorities recognize, that a special verdict to be good must find all the facts essential to entitle one party or the other to judgment, and that it cannot be aided by intendment or presumption. If it were not so, the parties would be left at the mercy of the judge or jury trying the case; for the parties can exercise no control over either judge or jury in framing the verdict. They cannot compel a finding either way upon any particular issue of fact. A material fact may be thoroughly proven, and yet a jury bringing in a special verdict may omit to find it, through inadvertence or otherwise; and a judge may do the same thing, if not so probably from inadvertence, from mistaken views of the law as to what facts are material and what are not. If he has formed an opinion that certain facts, of the existence of which he is satisfied, are sufficient to authorize a judgment, he will not be likely to trouble himself to pass on other issues which he regards as immaterial, especially if to do so would require the weighing and sifting of conflicting evidence. In such case he will be apt to pass them over in silence.
Now, in such a case, the party against whom the judgment is rendered, on a finding of facts insufficient in themselves to support the judgment, is absolutely remediless, if the court of error is at liberty to add to the verdict by intendment, on the ground that a state of facts which he was bound to prove, not being affirmatively found, must be presumed not to exist. He may have proved it beyond question, or by a preponderance of evidence, and yet the court or jury may have omitted to find it, for one or the other of the reasons already suggested. If the fact is found either way, and the finding is against evidence, a motion for a new trial on that ground will afford the remedy. But if there is an entire omission to find either way upon the issue, and a finding upon it is an essential element in the facts on which judgment is to be based, there is no remedy, except to hold the verdict defective, and award a venire de novo. If in a court of error, it can be aided by intendment: if a fact essential to support the judgment, but not found by the verdict, can be assumed, because the burden was on the opposite party to prove the contrary, and the contrary is not found, then there is no safety for the rights of parties in case of a special verdict, since the judge or jury may find or omit to find upon such issues as they please, and are subject to no control in the selection.
We are advised and believe that the plaintiff is a holder bon a fide and for value, and can fully substantiate the fact by proof, and we submit that if the court is disturbed by want of a finding of that fact, that the ends of justice will be better satisfied by the award of a venire de novo, which will give both parties full opportunity to establish all material facts, than by resting an affirmance of this judgment upon a defence not pleaded, and on a fact not found, and (to say the least) perhaps not existing.
Mr. Galusha Parsons, contra.
Mr. Justice MILLER delivered the opinion of the court.

## Notes

* ↑ § 2880.
* ↑ § 2917.
* ↑ Act of March 3, 1865, § 4, 13 Stat. at Large, p. 501.
* ↑ 2d Tidd's Practice (4th Am. ed., 1856), p. 896 (marginal page 897), note A; where all the authorities, and particularly the American cases are cited. See, also, Barnes v. Williams, 11 Wheaton, 415; Blake v. Davis, 20 Ohio, 231; Gould's Pleadings, chap. 10, § 62.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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