CITY OF ANTHONY' 11. WOONSOCKET INSTITUTION FOR SAVINGS.
WHITE et a1. v. IOWA NAT. BANK OF DES MOINES. (Circuit Court of Appeals, Eighth Circuit. December 2, 1895.)
WaIT OF ERROR-LIMITATIONS.
Under Act March 3, 1891, § 11, a writ of error must be sued out within six months in order to authorize a review by the circuit court of appeals.
In Error to the Circuit Court of the United States for the Southern District of Iowa. Writ of error, sued out by Stephen V. White, Franklin W. Hopkins,and S. V. White & Co., to review a judgment in favor of the Iowa National Bank of Des Moines, Iowa. Writ dismis&ed. C. H. Gatch (C. A. Dudley and N. E. Coffin were with him' on the brief), for plaintiffs ill error. A, B. Cummins (Carroll Wright was with him on the brief), for defetidantinerror. Before CALDWELL, SANBORN, and THAYER, Circuit Judges.
SANBORN, Circuit Judge. This court has no jurisdiction of this case. The writ of error ,was BUed out on July 9, 1894, to review a judgment of dismissal of the action which was rendered on October 18, 1893. No motion for a new trial was made in the court below, and the judgment was final on that day, more than eight months before: the writ of error was issued. Section 11 of the act of March 3,1891, which created this court, and gave it the right to review the judgments of the circuit courts, provides:
''That no appeal or writ of enol' by which any order, judgment, or decree may be reviewed in the circuit courts of appeals under the provisions of this act shall be taken or sued out except within six months after the entry of the order. judgment. or decree sought to be reviewed." 26 Stat. 829, c. 517; . 1 Bupp. Rev. St. p. 004.
The writ must, accordingly, be dismissed, and it is so ordered.
CITY OF ANTHUNY v. WOONSOCKET INS'l'lTUTION FOR SAVINGS., (CircuitOourt of Appeals, Eighth Circuit. December 2, 1895.) No. 5:>4.
In an action against a city on interest coupons, the city 'cannot complain of error in admitting the coupons, without proof of their execution, if it subseq\leutly itself offered evidence amply suffiCIent to establish the due execution and delivery of the bonos to which the coupons were at· tached.
In Error to the Circuit Court of the United States for the District of Kansas. Geo. B. Crooker, F. C. Raney, Kos Harris, and R. R. Vermilion, for plaintiff in error. W. H. Rossington and Charles Blood Smith, for defendant in error. Before CALDWELL, SANBORN, and THAYER, Circuit Judges.. v.71F.no.1-7
THAYER, Circuit Judge. This suit was brought by the Woonsocket Instituthm for ,Savings, the defendant in error, against the city of Anthony, the phtintiff in error, . to recover the f;jUDl of. $2,850, the same being the amount due as interest on certain municipal bonds that were issued by the city of Anthony on October 1, 1888. The. interest sued for was evidenced by certain coupons attached to the bonds, and the present action was founded upon the coupons, which were filed with the petition as exhibits. On the trial of the case the plaintiff below offered the coupons in evidence without proving their execution, and the dffendant below objected to their intraducti0n, on the ground that they were "incompetent, irrelevant, and immaterial." The trial court overruled the objection, and subse· quently rendered a judgment in favor of the plaintiff :for the amount due on said coupons, with accrued interest. The only error assigned upon the present record, which can be noticed, is the action of the oourt in overruling the objection to the admission of the coupons in evidence. The Civil Code of Kansas provides that:
"In all actions, allegations of the execution of written instruments and indorsements thereon, of the existence of a corporation or partnership, or of any appointment or authority, or the correctness of any accouilt, duly verified by the affidavit of the party, his agent or attorney, shall be taken as tnJe unless the denial of the same beverUied by the atfidavit of the party, his agent or attorney." 2 Gen. St. Kan. 1889, par. 4191.
In the present case the defendant city had denied the execution of the coupons in suit by a plea duly verified by affidavit, and it was therefore incumbent on the plaintiff to prove the due execution of the coupons before they were admitted in evidence. But the error .complained of in admitting the coupons without proving their exe· cution was subsequently cured and rendered immaterial by the ac· tion of the defendant city in offering evidence in its own behalf, which was amply suffiCient to establish the due execution and de· liveryof the bonds to which the coupons in suit were attached. It o;ffered testimony which clearly showed that the bonds from which the coupons in suit had been detached were duly executed and delivered by the defendant city on October 1, 1888, to a banker by the name of W. H. Hurd, to take up and refund certain certificates of indebtedness and city warrants that were then held by said Hurd, and constituted an indebtedness on the part of the city. There was other evidence in the case which showed that the bonds thus issued to said Hurd were subsequently sold by him to the firm of Spitzer & Co., and that they were afterwards purchased by the present plain. tiff, the Woonsocket Institution for Savings, and were held and own· ed by it at the commencement of the present action. Under these circumstances, it is manifest that the defendant city is not in a position to complain of the action of the trial court in permitting the coupons to be read in evidence without antecedent proof of their execution, and, as no other error is assigned upon the record which can be reviewed, the judgment of the circuit court is affirmed.
BOPPENSTEDT 17. FULLER.
HOPPENSTEDT et al. v. FULLER et at. (Circuit Court of Appeals, Eighth Circuit. No. 597. 1.
JURISDICTION-AvERMENT OF CITIZENSHIP-CONFESSION.
December 2, 1895.)
Where the answer to the averment that plaintiffs are "citizens of the state of W., and residents therein," only puts in issue the question whether the plaintiffs "reside" in that state, the averment that they are "citizens" of the state-the essential jurisdictional fact-is confessed. The clerical error of a sheriff in atfixing the wrong date to a certificate of redemption does not affect the validity of the redemption. redemption, and made no objection to its admissibility on that ground, they cannot make such objection for the first time in tile appellate court.
2. REDEMPTION FROM MORTGAGE SALE-VALIDITY.
3. REVIEW ON ApPEAL-OBJECTION NOT RAISED BELOW. If plaintiffs in error admitted a mistake in the date of a certificate ot
In the absence of anytiling in the record to show the contrary, it will be presumed that the findings of the lower court were based on admissions or competent evidence, and that there was no objection to the ad mission of any evidence tending to prove the facts found. A holder of a junior mortgage who did not, within the year allowt'1\ tor redemption, file the notice required by statute of his intention to redeem from a sale under a senior mortgage, cannot object that a redemp-tion by a judgment creditor was based on an affidavit which included two judgments, only one of which was a lien on the land.
3. BALE UNDER MORTGAGE-REDEMPTION BY JUDGMENT CREDITOR.
In Error to the Circuit Court of the United States for the Distric' of Minnesota.
The defendants in error, M. E. Fuller, John A. Johnson, and Edward M. Fuller, brought this action in the United States circuit court for the Second division of the district of Minnesota, against the piaintiffs in error, H. )j'" Hoppenstedt and Ernst Bierman, to recover a quarter section of land. II. jury was waived, and the court made the folloWing special findings of fac'and declarations of law: "One F. W. Bierman entered the land under tile timber act of congress, and received a patent for the same February 3, 1S88. On April 25, 1888, he and his wife executed a mortgage of the premises to one C. K. Gilbert, aud on February 8, 1889, executed a second mortgage thereon to one Barnhard H. Franzen. Both mortgages were duly recorded about the time tiley bear date. On April 27, 1891, the latter mortgage was purchased by the defendant Hoppenstedt, and he also purchased the Gilbert mortgage on May 13, 1891, which was assigned to him, and all the instruments were duly recorded. Default having been made in the Gilbert mortgage the owner, Hoppenstedt, foreclosed by advertisement under the statute, and it was sold June 29, 1891, and bid in by him for the sum of $323.91, which was the amount due. On April 5, 1890, the firm of FUller & Johnson obtained a judgment against F. W. Bierman for the sum of $691.40, and $11.00 costs. This judgment was obtained upon notes executed before the patent issued to Bierman under the timber culture act, and, by the terms of that act, the jUdgment obtained would not be a lien upon this property. On February 23, 1891, Spieker Bros. obtained a judgment against Bierman for the sum of $157.17, which was duly assigned to Fuller & Johnson, and became a lien upon the land in question. On June 28, 1892, Fuller & Johnson, the survivors of the old firm of Fuller & Johnson, one of the partners having died, filed through their agent, Peterson, notice of an intention to redeem from the sale under the Gilbert mort· gage, in time under the statute; and the same agent also, on June 29, 1892, made an affidavit stating the amount due on tile two judgments owned by