Watertown republican. [volume] (Watertown, Wis.) 1860-1906, 1894-06-06
The Bond Litigation.

| town DOnd lltlgatlOn, and more GSpG-
cially to the Metcalf case, is cheerfullv
given space in our columns, knowing
! the same will prove interesting reading
at this time, coming as it does from one
so well posted on the matter:
WATERFOWL, Wis, June G.
To the Editor Of The Wutert01On Republican: In
an article replying to Taxpayer in THE
! REPUBLICAN of the 23rd ult., the writer
says: July "a, 1883, Metcalf commenced a
new suit to recover on his Judgment, but
| failed in getting proper service, as had been
previously held by the United Sdtes Sapreme court .
| This, as to the supreme court of the
| United States having p1 eUiouSy held such SER
vice not proper, or not good is all mistake.
| In the earlier part of the year 1883, in the
! suit of Wirts versus the city of WatertOwn
| in which the marshals return of service was
! the same in effect as the service in the said
case of Metcalf versus our city, the circuit
! court of the United States for the western
! district of Wisconsin, Justice Harlan, of the
! United States supreme court, presiding, held
| the service good and proper, and that the
| chairman of the board of street commission
| ers was, in effect mayor of our city; and
| thereupon entered Judgment against our
| city in favor of Wirts for upwards of $50 OOO
| The court then caused to be published in the
regular reports for this United States cir
| cult full report of it's proceedings in the
case, and its reasons therefor.
This caused the holders of judgments and
bonds to bring a host of suits against our
city, and the board of aldermen-the street
commisSioners-to adopt Aid. Fhnn's resolu-
ton to defend the city and test all statutes
of limitation which the suits involved. and
especially the ten years statute of limitations
in said suit by Metcalf, and then to retain
! first Col Bird, and afterwards myself for
! such defense.
Thereupon Col. Bird, and myself, as the
case did not admit of delay voluntarily ap-
| peared (all appearances of attorneys in a
! suit to defend are voluntary, they cannot
! otherwise defend it) in seven cases in obedi-
| ence to said Finn resolution to test the sew
| eral statutes of limitation bearing on our
| city debts, and in this Metcalf case among
! them, as no decision had ever been made as
to said service, except said decision of Judges
| Harlan and Bum in favor of its validity
! In July, 1888 the judgments versus Water
town, principal and interest, amounted to
| hundreds OF thousands of dollars. This was
| much the most troublesome and threatening
| part OF our whole debt 1t first arrested the
| attention OF our city authorities. Many
mandamuSes had been issued and served on
| the aldermen to compel them to levy taxes
to pay, the judgments. Ten, but not twenty
| years had run on nearly all of them
Mr.. Finn had been for several years a
member of our state Legislature, and well
knew the provisions of our Wisconsin law
! which says that the lapse of ten years
| on United States court judgment is a
! bar TO any action upon it. Feeling that the
| situation OF the city was wholly insecure in
n
| adopted Finn S said resolution.
| All the seven cases were decided in the
/ citys favor by the United States circuit
| court for the western district Of Wisconsin.
| Then all OF them were taken on WritS OF error
| to the United States supreme court, and all
| except said Metcaif case were there decided
| IN favor OF our city, relieving ii entirely
| from the crushing weight of its railroad
| Indebtedness, except what in this Metcaif
| case tax OF not more than two per cent. on
| the city assessment Will pay.
! Now, going back, in or about July 1888 Col
! Bird and / made a motion in the Wirts case
| TO set aside said judgment and service there
| IN as Illegal In january, 1854, we argued
| thlS motion ami convinced Judge Bum that
| it ought to be granted; but as Justice Har-
| Ian had presided at the trial when the SER
| vice had been held good and proper he
Judge Bum, refused to do anything about it
| unless Justice Harlan would consent to it.
He said he had written him twice requesting
his consent, but had received no answer. He
! then suggested that Col Bird and | should go
! to Chicago at Justice Harlan's next term of
court Un0f0, 10 see II we could get MS consent
| to Judge Bum granting our said motion
| We went about May, 1854, and saw Judge Har-
| Ian, who told US that he mad written Judge
| Bum that very morning to do Just as he
| pleased about II. From all that Justice Har-
| Ian said to us, 1t was the fair inference that
| he still thought the service proper, and the
| judgment legal ana valid.
! Judge Bum then at once entered an order
| OF his court setting aside said service and
| judgment in this >Nirts case; and Wirts' at
| tOrneys, Messrs. Jenkins and Winkler there
n TO fbo
| United States supreme court in order to re-
| verse it, where it remained pending until the
spring groa OF l0Gg when the precise question
| Metcalf case, was i'll the case of Amy versus
Watertown, first decided in favor of
our city (Amy, versus Watertown, 1870
! finding that the United States supreme
court was against them, dismissed their
| said writ Of error which terminated their
litigation against us. So that, instead Of the
| United States supreme court having held
prior to July "A, 1883, that a service such as
was made in the Metcaf case against us was
| improper, the question never came before
that court for its decision until the
| spring of 1859, some six years afterward; and
| it could not have been known before the full
end of that time. just how the United States
! supreme court would hold or decide it.
| have written the above in justice to Mr..
Finn, Hon. Fred Kusel and the aldermen,
| who employed Col Bird and myself to do, and
authorized us to do just what we did in de-
| Tending, and in seeking to defend our city.
| Suppose that, instead OF appearing as we
| did, directly, i'll the Metcalf case, as directed
| and employed to do by our city authorities
| pursuant to said Finn resolution, we had ap-
peared specially, and moved to set aside the
service, the only other thing we could have
done. This would have landed Metcalf, the
| most potent litigant we have ever had to deal
| with, among the six other cases decided by
| the same court in our favor; and in such
| case, there is reason to fear that the whole
| seven cases would have been decided against
| us, and our city ruined.
| Hence, believe, that, in voluntarily ap-
| pearlng for the city in the Metcalf suit, in
| obedience, as aforesaid to said Flinn's resO
| luton, Col Bird and | pursued the safest
| course for the city
| After appearing and joining issue in the
| case by setting up said ten years statute of
| limitations as a bar and full defense to the
| action, Col. Bird and / duly tried it at Madi-
! son in the United States circuit court for the
! western district of Wisconsin, and it was
| then decided in favor of our city, Judge Bum
| presiding. Metcalf then moved for q review
| Of the case by the stuIl bench of the court In
/ complain &c with tLis motion, Judge Gresham
| III the spring of 1884, came to Madison and
| held court with Judge Bum; and the full
| bench Of the court decided the case again in
| favor Of the city, that the ten years statute
of limitations we had plead in bar, was a full
and complete defense to the whole of Met
| calfs action This judgment in our favor
! was then taken on writ of error to the United
| States supreme court. But Metcalf having
| failed to make the proper averment of citi-
| Zenshlp as to one OF his assignOrs the CAGE
was sent back at his expense for amendment,