Lexington weekly intelligencer. (Lexington, Mo.) 1871-1887, 1882-05-06

GREENE COUNTY BONDS.

B. W. Neal ;AIMa
GREENE COUNTY BONDS.
lmpertant Dissenting opinion by
Chief Justice Sherwood.
State ex rel Wilson, Collector of Geene
county, resp, VS., L. w. Rainey, ap.
Appeal from Greene circuit court.
In this case q majority of the supreme
court at the April term. 1881, held that
where q Judgment was obtained in the
United States circuit court against
Greene county IN certain coupons Of
by the county court to pay said judy
ment in obedience to q mandate Of the
United States court. and in conformity
with the laws of The state then in force.
authorizing the county courts to levy
taxes tor the payment Of county indebt-
Sdness that, in an action in the state
courts by the collector against q mer-
chant on his bond, to collect the amount
Of tax assessed against him to pay said
Judgment; that the tax could not be
avoided on the ground that the bonds
for the interest on which the judgment
had been rendered were void, for that
question was conclusively determined
against the county in the judgment rem
dered in the United States court, and
will so remain unless reversed by some
court having The power to review it.
2. A judgment against a county court,
OF Its legal representatives. in o matter
of general interest. as the levying and
collecting OF taxes, is binding, moi only
on official representatives OF the county
named in the proceedings. but upon all
of the citizens of the county, though not
parties defendant by name.
At the last term ofahe county court q
motion for ~rehearing was oyerruled
On the 18th inst, the following dissent
ing opinion was filed in the Office of the
clerk of the supreme court:
DISSENTING OPINION.
These are the grounds upon which ]
dissent from the foregoing opinion.
1.
The Judgment rendered in the federal
court In favor Of Davis and against the
county Of Greene. Is not binding OH the
defendant Rainey, neither is he conclud-
ed thereby. 1t is only the assertion of
elementary law, to say that q man, who
is not q party to q suit, anu who could
not have been made such at his instance,
Is not bound by any judgment Or decree
therein rendered, unless in those lnstan-
ces where he is either a privy in blood
or estate with the party against whom
the Judgment was rendered. No such
privity will be affirmed as existing be-
tween a county and its citizens.
The only valid ground. then, upon
which it can be urged that . citizen is
bound and barred by a judgment.
against q county, is. that he either was
. party to the suit. or else might have
been made such at the instance of the
adversary. or at his own instance. I'm
less this was or could have been done, a
citizen of a county cannot be said to
have had his day IN court and if he has
not had his day. to hold that a judgment
rendered against the county would bind
him, would shut his mouth, would pre-.
vent him from denying the validity OF
the alleged debt, and the validity of the
judgment. based thereon, would be con-
trary to that elementary and fundament-
al principle which iorbids the property
of any man to be taken without tdue
process, OF law"
Aside from the questions of privity,
not presented by this record. it is clear
from the authorities that the test ques-
ton, In all cases where it is asserted
that . man is bound by Judgment is
this. Was he q party to the suit, or
oould he have become suchP Will it
be commended for q moment that when
fhA nn,,nk. nj o,,ol kk.k
Rainey, II ever 30 DESTROYS, could have
been a party defendant along with tine
county, II he could not have been,
then plainly he could not be bound, or
in any way concluded by the result OF a
suit to which he neither was, nc yet
could have been, made a co-defendant.
Mr.. Blgelow says: sit is a general
principle, fundamental to the doctrine
of res jsldicaaa. that personal judgments
conclude only parties to them and their
privies:" Bigelow Estop, page So:
Mr.. Greenleaf says: Parties in the
larger legal sense. are all persons hav.
ing q right 10 control the proceedings
to make defense to adduco and cross
examine witness, and to appeal IRON the
decision. il an appeal lies" LIST Glf.
Evid. S 535.
Rainey possessed nc such rights. Had
he attempted in the suit oil Davis
against the county. 10 exercise any such.
he would have. been promptly rebuked
for his impertiBence; his unwarranted
and unwelcOme intrusion. Is he then
bound by the judgment in that suit ?
Plainly he is not il we follow the au.
thorities, and the principle which they
enumerate. This principle is extensive
ly discussed and asserted in Strong VS..
Ins. Co. 81 Mo. 2S9, where the case OF
Robbins va. The city OF Chicago,4 Wall.
657, is cited with approval. There
Robbins, when sued by Woodbury.
against the latter on the express ground
that Robbins 'knew tue suit was pend
ing and could have defended it."
This principle is also avowed by the
supreme court of the United States, in
Rees VS.. Watertown, 10 Wall. 1O7.
There Rees had recovered judgment
against the city OF WATERFOWL, and had
vainly endeavored by mandamus to col.
lect the judgment thus recovered.
The counsel for Rees commended, con.
corning the city, that: 1.-The defendant
is the same that contracted the debt. =
1t is the embodiment Of the
citizens to act for them in this matter
made aud unmade by them at theil
pleasure, so as far filing the Offices ano
controlling their action is concerned. L
had authority to borrow money for thu
citizens, to spend it for the citizens. ant
to defend against the payment OF it at tn,
expense OF the citizens. In short, it hal
ample and exclusive authority to repre-
sent The citizens at every STAGE"
But the supreme court took q widel,
different view in reference to a citizel
OF the city of Watertown being boun'
by the judgment rendered against tn
city. and in speaking on this point, said
'He has never been heard In courl
He has had no opportunity to establish
; = defense to the debt itself. or, if th
: Judgment is valid, to show that hi
nv sDerty Is not liable to its payment
Groc. The proceeding suppose
Hasiolate that fundamental principl
so't Gas 81 and ad q q Charsa embodied in the cor
soots and Shoes. the United States; that n
Game, Y sSsae deprived Of his propert