AUSTIN v. HAMILTON COUNTY, 76 F. 208

WOODS, Circuit Judge, after making the foregoing statement, delivered the opinion of the court. The special finding should not have been accompanied with a general finding. British Queen Min. Co. v. Baker Silver-Min. Co., 139 U. S. 222, 11 Sup. Ct. 523; Wesson v. Saline Co., 20 C. C. A. 227, 73 Fed. 917. The declaration, it is to be observed, contains no averment to the effect that the plaintiff was a purchaser of the bonds in good faith. On the contrary, his reliance is shown to have been solely upon the adjudication in favor of Jackson in the chancery suit.

It is needless, therefore, to consider what significance might be due to the recitals in the bonds that they were issued in pursuance of an election held in November, 1883, and in conformity with the provisions of the refunding act of April 16, 1869. Indeed, the declaration may be taken as a concession of the contention of counsel for the defendant in error that, outside of sectiqn 20 of the .act for the incorporation of the St. Louis & Southeastern Railroad Company, there was no authority for the execution of these bonds.

They were in .fact put out under the authority supposed to be conferred by that section, and, in view of its terms, there could be no question of their validity, but for the decision of the supreme court of the state, in the case referred to (People v. Hamill, 143 Ill. 666, 17 N. E. 799, and 29 N. E. 280), that the

section was unconslitutional because not: embraced, in the title, and not germane to the subject oí the act in which it Í3 found.

That decision was announced J une 16, 1888, and, while it is alleged in the declaration that the plaintiff purchased his bonds at an earlier date, the finding of facts contains nothing upon the point, except that ‘The plaintiff's intestate was the holder before due * * * of the coupons * * * declared on in this suit, * * i:' due, respectively, July 1, 1888, and January 1, 1889.” There was therefore a period oí 15 days between the date oí the decision and the date when the first coupons became due, within which, presumptively with knowledge of the decision, the plaintiff could have made his purchase of the bonds; and, the burden of proof in this particular being upon the plaintiff, the special finding must be read as if it expressly stated that the purchase was made during that time.

Wesson v. Saline Co., supra; Sneed v. Milling Co., 20 C. C. A. 230, 73 Fed. 925. The essential question before us, therefore, is, to wha,t extent are the parties to this case concluded by the decree in chancery of June 5, 1881? It is found that the Bt. Louis & Southeastern Railroad Company, and "the unknown owners and holders” of the 200 bonds of the county, “were duly served with publication notice of the pendency of the suit as provided in

section 12 of

chapter 22 of the Illinois Statutes, relating to practice in courts of chancery.” It could hardly be and we do not understand that it is asserted that in such a case notice by publication can give jurisdiction over nonresidents of the state where the suit is brought. Pennoyer v. Neff, 95 U. 714; St. Clair v. Cox, 106 U. S. 350, 1 Sup.

Ct. 354. _ Whether in this instance the parties described as unknown were or were not domiciled within the state, and were brought, by force of the published notice, within the jurisdiction of the court, does not appear; but as between the county, which brought the suit, and Jackson, who, after being allowed to intervene, was made a defendant by name, and not only answered denying the allegations of the bill, but filed a cross bill affirming the validity of the bonds, there can be no question tba,t the decree is conclusive, and that the plaintiff, as assignee of Jackson, was entitled to the judgment awarded him.

To that extent the case is essentially the same as that adjudged in Franklin Co. v. German Sav. Bank, 142 U. S. 99, 12 Sup. Ct. 147. Here, as there, the validity of the bonds was put directly in issue by the pleadings, and was determined adversely to the county. Here, it is true, the finding says that the constitutionality of

section 20 of the act for the incorporation of the railroad company “was not drawn in question, passed upon, or decided” in the chancery canse; but that is a mistaken conclusion of law, rather than a finding of fact.

Under the issues joined, both upon the bill and the cross bill, the validity and force of that section, equally with any other enactment referred to in the recitals of the bonds, were necessarily within the scope of inquiry, whether actually considered or not, and therefore were determined by the decree, in which, according to the finding, Jackson’s bonds were specified by number, and all declared valid. The question of the validity of those bonds, therefore, is not open to reconsideration. Cromwell v. County of Sac, 94 U. S. 351; Nesbit v. Riverside Independent Dist., 144 U. S. 610, 12 Sup.

Ct. 746; David Bradley Manuf’g Co. v. Eagle Manuf’g Co., 18 U. S. App. 455, 7 C. C. A. 442, 58 Fed. 721. The other six bonds do not come within the estoppel, because it does not appear that they were held by any one who was a party to the decree; and the plaintiff in error is not in a situation to ask, as he does, that, in order to uphold them, we disregard the decision of tlm supreme court of the state, anil follow the earlier ruling of the United States circuit court in the chancery suit.

It does not appear that he obtained the six bonds, either directly or remotely, from an innocent holder for value; and, as already stated, it must be assumed that he did not buy them until after the state court had declared them invalid. The judgment of the circuit court is affirmed.