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APACHE COUNTY V. BARTH, 177 U. S. 538 (1900)

U.S. Supreme Court

Apache County v. Barth, 177 U.S. 538 (1900)

Apache County v. Barth

No. 181

Submitted March 13, 1900

Decided April 30, 1900

177 U.S. 538


In an action at common law to recover from a municipal organization upon a warranty issued by it, when the defendant denies the execution of it, and sets up that it is a forgery, the plaintiff, in order to be entitled to put the instrument in evidence, and thereby make a prima facie case, would be compelled to prove its execution.

The Revised Statutes of Arizona of 1887, provide:

"735. (Sec. 87.) Any answer setting up any of the following matters, unless the truth of the pleadings appear of record, shall be verified by affidavit --"

"* * * *"

"8. A denial of the execution by himself or by his authority of any instrument in writing upon which any pleading is founded, in whole or in part, and charged to have been executed by him or by his authority, and not alleged to be lost or destroyed. Where such instrument in writing is charged to have been executed by a person then deceased, the affidavit will be sufficient if it state that the affiant has reason to believe and does believe, that such instrument was not executed by the decedent or by his authority."

Held, that when the defendant did not verify his answer in a case provided for therein, the note or warrant or, other paper sued on was admitted as genuine, but when an answer denying that fact was verified, the plaintiff must prove it as he would have to do at common law in a case where the genuineness of the paper was put at issue by the pleadings.

In September, 1891, Jacob Barth commenced an action in one of the district courts of the Territory of Arizona against the Board of Supervisors of Apache County, in that territory to recover upon certain warrants which he alleged had been issued

Page 177 U. S. 539

by that county during the year 1884, and of which he claimed to be the owner. Barth soon thereafter died, leaving a will, which was proved in February, 1892, and by order of the court in March, 1896, the action was revived in the name of Julia Barth, the appellee, who was the executrix named in the will. She filed in March, 1896, by leave of court, an amended complaint containing forty counts upon as many different warrants, which she alleged had been issued by the board of supervisors of the county on account of debts due from the county, and of which warrants she was the owner, and that the county owed her thereon an amount exceeding seven thousand dollars, for which sum she duly demanded judgment, with interest. A copy of each warrant was annexed to the complaint, and formed part thereof.

The defendant filed an unverified amended answer to this amended complaint, which answer was subsequently verified, and, among other things, denied that any of the warrants sued on had ever been issued or been directed to be issued by the Board of Supervisors of the county or by the authority of that board, but, on the contrary, defendant alleged that the pretended warrants sued on were, and each of them was, falsely made and forged, and that they were, and each of them was, a forgery, and that they were so falsely made and forged with a fraudulent intent to defraud the County of Apache. The defendant prayed judgment that plaintiff take nothing by her action, and for costs and for general relief.

Other defenses were set up, among which was the statute of limitations.

The case came on for trial before the court, a jury trial having been waived, and the court, having decided it, signed a statement of the facts found by it, in which it was stated that evidence had been introduced upon the trial, both oral and documentary, and upon the admission of the plaintiff the court found that the figures on eleven of the warrants (duly described and identified) had been altered and changed after they had been issued, and that such alterations and changes vitiated and rendered null and void those warrants as against the defendant, and that they were not valid claims against the county. The

Page 177 U. S. 540

court then made a general finding that all of the other warrants sued on were valid and subsisting legal claims against the county, and that plaintiff was entitled to recover upon each warrant the amount named therein, which, with interest, amounted to about the sum of $14,000 and for that sum judgment was directed to be entered, which was subsequently done. There was no further or special finding made by the trial court.

From this judgment an appeal was taken by the county to the Supreme Court of the Territory of Arizona, where it was affirmed.

The supreme court at the time of affirming the judgment made and signed by its chief justice a statement of facts in the case as follows:

"The supreme court takes the facts as found by the district court on the trial in that court and as shown by the record, and makes them the statement of the facts in this cause."

"This Court finds that the district court did not commit error in finding against the plea of limitation set up by appellant."

"The court further finds that the district court did not commit error in granting and rendering judgment in favor of appellee on the warrants sued on and against appellant, notwithstanding the verified answer of appellant. The supreme court further finds that the district court did not commit error in refusing to render judgment for appellant on the verified answer of appellant, notwithstanding appellee did not introduce any evidence to establish the genuineness of said warrants for which appellee asked judgment, because the court finds that the warrants were verity of themselves, and the verified answer only put appellant in position in court to prove the facts set up in her answer, and did not put appellee on proof of their genuineness; hence the supreme court finds as a conclusion that the judgment of the district court should be affirmed. Judgment of affirmation and confirmation is therefore ordered and directed."

"This June 11th, 1898."

The county has appealed to this Court from the judgment of the supreme court of the territory.

Page 177 U. S. 541

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