:by the. deVise being expt:essly granted -in the charter to the city; the only objection thereto arises on the! manner of its acceptanceby the city, as to whether the ordinance should have been broader. So.1ong as the parties thereto are content with the acceptance,and the city is paying the annuity required under ordinancesm.aklng· the annual appropriations in the icustomary mode for annual application of the general fund fol' the current year, and the .ch:l!-,oorauthorizing the payment· out of the geneml fund, it is not pel'celva1Jle that thes.e plaintiffs have any standing in court on the ground that the devise is void. In this view of the case, it is.not necessary that the court should consider the question raised as to whether the last clause of· said paragraph ·of the will is void for uncertainty. The city having accepted, the contingency on which said clause would become operative can never arise. The bill is dismissed.
SKIRVING v. NATIONA.L LIFE INS. CO. OF MONTPELIER. (Circuit Court of Appeals, Eighth Circuit. No. 321.
January 29, 1894.)
It is no reason for enjoining a judgment regularly recovered at law in a federal epurt that the record therein falls to show that the citizenship of theallsignor of the plaIntltr therein was such as to give the court jurisdiction,. for judgments of federal courts, rendered upon personal service, are valid until reversed, even if the record fails to· show the facts on which jurisdiction rests.
SAME-FEDERAL COURT-JURISDICTIONAL AMOUNT.
Query, whether a taxJ:!ayer seeking to enjoin in a federal court the collection of a judgment against a school district must not show that his proportion of the taxes necessary to pay the judgment will equal $2,000
Appeal from the Circuit Court of the United States for the District of Nebraska. In Equity. .Suit by James skirving, a taxpayer, to enjoin the National Life Insurance Company of Montpelier, Vt., from enforoing a judgment at law against school district No. 44 of Holt county, Neb. The circuit court dismissed the bill. Complainant appeals. Statement by Circuit Judge:
On the 15th' day of April, 1889, the proper officers of school district No. 44 of Holt county, Neb., issued three orders upon the trejlsurer of the district, payable to the order of Clark & Leonard Investment Company,-Qne for $1,000, due one year after date; and two for $1,500 each, due, respectively, two
SKIRVING V. NATIONAL LU·EINS. CO.
and tlu'ee years after da.te. The payees of the orders indorsed them to the appellee, the National Life Insurance Company of Montpelier, Vt., on the 24th day of Aprll, 1889. The insurance company purchased the orders in good faith, paying $3,740 for them. The orders were issued and sold to raise money to build a schoolhouse for the district, and the money derived from their sale was used for that purpose. After the erection of the school· house, the district accepted and used it, and is still using it, as a schoolbouse. On the 27th day of May, 1892, the appellee brought suit on the law dide of the United States circuit court for the district of Nebraska against the school district on the orders. A summons was issued in the action, and the proper officers of the district accepted service thereof in writing, and at a term of the circuit court held on the 30th day of June, 1892, the plaintiff in the a¢ion recovered a judgment by default against the school district for $4,996.98 and costs of suit. On the 9th day of JUly, 1892, the appellant filed this bill in the court in which the judgment was rendered against the school district, to enjoin its collection. The bill alleges that the appellant has been a resident of the district for several years, and is the owner of $5,000 worth of real estate and a large amount of personal property subject to taxation in the district, but it does not allege that his proportion of the taxes to pay the judgment would be $2,000, or any other sum, and the bill is not filed on behalf of the other taxpayers of the district or of the district. The grounds upon which it is sought to enjoin the judgment are that the officers of the school district had no authority to issue the orders, or to levy a tax to pay them; that, when issued, they were in excess of the amount of indebtedness the district was allowed by law to contract; that their issue was not authorized by a vote of the electors of the district; and that in a suit brought by the appellant in the state court against the treasurer, moderator, and director of the district and the Clark & Leonard Investment Company a decree was rendered on the 24th day of January, 1891, adjudging that the orders had been illegally iSSUed, and enjoining the officers of the school district from paying, and the Clark & Leonard Investment Company from collecting, them. Long before the commencement of the suit in the state court, Clark & Leonard Investment Company had assigned the orders to the appellees who were not made parties to that suit. The prayer of the bill is that the ap1)ellee may be restrained "from proceeding at law against ;your orator touching any of the matters in question, or in any manner seeking to enforce the collection of the aforesaid judgment at law."
H. C. Brome, for appellant. Stephen B. Pound and Lionel C. Burr, for appellee. Before CALDWELL and SANBORN, Circuit Judges. CALDWELL, Circuit Judge, after stating the facts as above, delivered the opinion of the court. The officers of the district declined to interpose any technical de· fense to the action on the orders upon the ground that the school district had received the money and built a school house with it, and in justice and equity ought to repay it; and in this view the taxpayers of the district, save the appellant, seem to have concurred. There is not the slightest evidence to show that the plain· tiff in the judgment at law was guilty of any fraud, misrepresentation, deceit, or misbehavior of any kind in obtaining its judgment against the district. It purchased the orders in good faith, paying full value for them; and, the orders not being paid at their maturity it brought suit in the regular manner, in a court of competent jurisdiction, and, after due service of summons on the defendant, obtained judgment for the amount of the orders. The general rules regulating the exercise of the jurisdiction of eq-
·,nit,to enjoin the collection of a.judgment recovered. at law a.re welJ The jurisdiction is not favored, and the grounds upon be exercised are, narrow and restricted. I t will not that injustice is done by the judgmellt against which velief is sought, and that it would be a hardship to enforce it, or that the defendant had a good legal defense to the cause of action .upon'-YJ:rlch, the judgment was rendered; but it must also appear :that, the, defendant was prevented from interposing his defense at 'law by the .fraud or misconduct of the plaintiff, or by some accident or ,mistake occurring without any fault of the defendant or his , agellts, and that it would be contrary to equity and good conscience ;to enforce the judgment,. 1 High,lnj. §§ 165--178, and cases cited; .1 Black; JUdgm. §§ 356,366,378, and cases cited; Insurance Co. v. ''Hodgson,7Cranch,332; Sample v. Barnes, 14 How. 70, 7Q; Creath's Adm',r v.Sbns, 5 How. 192, 204. . ,Assuming, but not deciding, that the school district had a O'ood , legal defense to the orders, none of the other conditions essential to authOritea court of equity to 'enjoin a judgment is present in this, case., The plaintiff was guilty of no fraud or misbehavior whatever. It asserted its claim against the school district openly, . and in the accustomed and orderly manner in which suits are brought alid prosecuted. The defendant was not prevented bJ i fraud, or mistake from interposing a defense to the acltion, if it:hitd one; and certainly it is not shown that it would be contrary to equity and good conscience to allow the judgment to be On the contrary, the school district itself, through its declin,ed to interpose any defense'to the suit on ,the orders upon the ground that it would be contrary tQ equity and ,good conscience to contest the repayment of the money under the circumstances. There was no fraud or bad faith on the part of anyone connected with the business. The school di,strict received the appellee'!3 money, and used it to build a schoolhouse for the district, which was needed, and which the district accepted and is u8ing. Upon these facts the moral obligation resting upon the to repay the money was very great, and, after the demand has passed into a judgment, fairly and regularly obtained, a court of will not enjoill its collection. ' ,'Where it was sought to enjoin a county from paying county 'orders issued for a claim less meritorious than the claim upon which 'this judgU}ent was rendered, the supreme court of Ohio said: "This court not to interpose by injunction to save the county from the payment of a demand havingthe sanction of moral obligation." Commissioners v. Hunt, 5 Ohio St. 488; Newcomb v. Horton, 18 Wis. 594. Certainly, after a judgment has been regularly obtained ,vpon ,slIe\! a demand, it would be contrary to any man's sense of eql1ity and good conscience to enjoin it,s collection uIJ(ln the com'J?ll;l:int of a single discontented taxpayer. .' '. ,'the appellant cites and relies on Orampton v. Zabriskie, 101 U. S: 601, bu,t tlla,t is not in point. That waS a suit "br()ught by the.,COllnty to ' cOIllpel. the board to . ' ;\ reconvey the Jet. ,,}. ',:,:" .. . . ; .,.
SKIRVING 'V. NATIONAL LIFE lNS.:CO.
land and Crampton to return the bonds, and to enjoin the prosecution of the action to enforce their paymenU' It will be observed that no judgment had been recovered in that case, and the bill was filed to compel the board to reconvey the land which was the consideration for the bonds upon which suit had been brought. The bill did not seek to keep the consideration received for the bonds, and repudiate the bonds, but its object was to cancel the contract, return the consideration received for the bonds, and then cancel them. In this suit the appellant seeks to have the school district keep the consideration it received for the orders, and to en-' join, at his own suit, the payment of the judgment rendered upon the o r d e r s . ' , It does not appear from the complaint and record in the law case that the citizenship of the assignors of these orders was such as would have enabled them to maintain a suit thereon in the circuit court, and it is urged that for this reason the court rendering the judgment was without jurisdiction, and the judgment void. There are two answers to this contention: The bill does not challenge the, jurisdiction of the court rendering the judgment; but if it did, it is well settled that the judgments and decrees. of the United States courts rendered upon personal service on the defendant are binding until reversed, though no jurisdiction be shown. on the record. If the record fails to show the facts on which the jurisdiction rests,-as, for instance, that the plaintiff and. the defendants are citizens of different states; or, where the plaintiff sues as assignee, that his assignor might have maintained the suit, -the judgment may be reversed for error upon a direct proceeding for that purpose, but it is not void, and cannot be attacked collaterally. McCormick v. Sullivant, 10 Wheat. 192; Des Moines Nav. & R. Co. v. Iowa Homestead Co., 123 U. S. 553, 8 Sup. Ct. 217; In re Sawyer, 124 U. S. 200, 220, 221, 8 Sup. Ct. 482. A much graver question of jurisdiction arises in the case applicable to the appellant. There is no pretense that his proportion of the tax upon the taxable property in the district required to pay the judgment would amount to $2,000. The judgment itself exceeds that sum, but it is not certain by any means that the amount of the judgment is the criterion for ascertaining the amount in controversy in such a case as this. The bill, in effect, is one to enjoin the collection of taxes to pay the judgment. Upon the allegations in the bill the court cannot assume that appellant's taxes would be more than nominal. If the amount of the appellant's tax is to be 'regarded as the amount in controversy, it follows that the court below had no jurisdiction of the case. Newcomb v. Hor· ton, 18 Wis. 594; King v. Wilson, 1 Dill. 555, 568; Seaver v. Bige"low, 5 Wall. 208; Woodman v. Latimer, 2 Fed. 842; Massa v. Cutting, 30 Fed. 1; Terry v. Hatch, 93 U. S. 44. But, as this point was not raised in argument, we express no opinion upon it. The decree of the court below is affirmed.
OWEW,$t,at T. SHEPARD
of Appea.1a, Eighth CirCuit. No. 284.
JanuarY 29, 18M.J '
'L EVIDlllNoB,""",Btnmuoll' PROOll'-EXISTBNCB OIl' CoRPORATION.
on defendants to prove the existence of a corporation. where"heing sued individually, as doing business under a company, name, they lhl.billty, and aver that the company was a corpora.. tion, and that the ,.ervlces were rendered to It.
,TheJ;'llle, that the regularity of organ111ation of a corporation cannot be Inquired into collaterally has no application where Individuals sued for servlc:esd,eny and set up the existence of a corporation, to which 'the, services were rendered. ' ,
It Is not competent to prove the organIllation of a business corporation under the Illinois laws by the testimony of the two persons 'claiming to bave,formed It, to the eft'ect that, being iuSt. Lows, they crossed to Ill1Dols wltha,ls.wyer,tJl.ere complied with the laws, and got a charter; it aPllearingthat the Illinois 'law requires at least three incorporators, prescribe, varloussteps requ1ring consldera1:>le,tlme for their accomplishment, andID4lkes ;tlj.e,c:;ertlficate of the secretary of state to the complete orgaDIzatlll,D of a the, legal evidence of that fact.
In Error to the United States Court in the Indian Territory. and GeorgeE. Nelsoh, for plainti'trs in error. S. s. Felirf',S. o. Hinds, and W. T. for defendants in error. ", Before CALDWELL, Circuit Judge, and District JlJdge. cOALDWELL, Circuit Judge. This suit was brought by the defendants in error, Shepard, Grove & Shepard, are lawyers practicing in,the Indian'rerritory, against the plaintiffs in error, BobertL. OWen and James E. Reynolds, to recrver fees for legal services, ,There was a trial to a jury, and a verdict and judgment for theplainiiffs, and the defendants sued out this writ of error. The errors chietly relied;on relate to the rulings of the lower court lngiving and in refusing instructions upon the question whether the Indian Trading Company was a legally constituted corporation. The defendants were sued individually, the complaint alleging that they were business under the style of the Indian Trading Company." The answer denied that the defeJldants were liable personally, and averred ,that the Indian Trading Company was a corporation,and the contention of, the defendants, upon the trial beloW was thatapyservices performed by the plaintiffs ,were performed for· the alleged' corporation, for the defendants perI5Onally. Tbe' defendants "conducted a, business in the Indian Territory ullder th.e style of the Company, and they retained the plaintiffs to assist in SOme legal proceediags which were conducted in that name. The defe'ndants' disposed of their stock of goods, ceased to do business as merchants, and the
: Rehearing pendine.