62 Neb. 239 | Neb. | 1901
This action Avas begun in the district court of Adams county to procure a peremptory AArrit of mandamus to compel the levy and collection of taxes to pay a judgment which it Avas alleged,-the relators had obtained against school district No. 84 of Adams county and school district No. 21. of Hall county. Upon trial in the district court there Avas a judgment aAvarding the peremptory writ as prayed. The action Avas against the chairman and superAÚsors, county clerk and county treasurer of Adams county, and also the chairman and supervisors, county clerk and treasurer of Hall county, and the defendants therein have brought the case'- here for revieAV upon petition in error, the said officers of Hall county having united in a petition in error to reverse the judgment as against them, and the officers-of Adams county having united in a separate petition- in error to reverse the judgment as against them..
It is alleged in the petition for the writ that at the June
1. The defendant officers of Hall county insist that the decree, as against them, is not supported by the evidence. It will be observed that the petition for the writ shows that there were, at the time of issuing the bonds in question, two independent school districts, No. 34 and No. 21, and alleges that they have been authorized to unite in building a schoolhouse and issuing the bonds in payment therefor; and these and all other allegations of the relators tending to show that any territory of Hall county was included in district No. 34 at- the time of the issuing of the bonds, or that school district No. 21 of Hall county was in any way connected with the issuing of the bonds, or liable therefor, are denied by the defendant officers of Hall county, and there was no proof on the trial tending to support these allegations, except the record of the proceedings of the district court in the former suit against district No. 34, from which it appears that one Bowen, attorney at law, acted for district No. 34, and as such-attorney stipulated
.2. In behalf of the officers of Adams county it is insisted that the alleged judgment upon the bonds is void, because “it was entered upon confession of an attorney and no warrant of attorney for making such confession was produced at the time.” This court has held that under our statutes a warrant of attorney is necessary to enter a judgment by confession against a corporation. Howell v. Gilt Edge Mfg. Co., 32 Nebr., 627; Chicago, B. & Q. R. Co. v. Hitchcock County, 60 Nebr., 722, and Fogg v. Ellis, 61 Nebr., 829, decided at the present term of this court. But the judgment in question was not entered by confession. A petition was filed, summons regularly issued and served, and defendant was in default for answer. If there had been no stipulation between the parties, there still would have been no irregularity, except the omission to enter a formal default against the defendant. Such an irregularity would not render the judgment void. Likes v. Wildish, 27 Nebr., 151; Smith v. Silvis, 8 Nebr., 164.
3. It is also insisted that no execution was ever issued on said judgment, nor any other proceeding had- to revive the same, and the judgment was, therefore, at the time of the commencement of these proceedings, dormant under section 482 of the Code. The statute no doubt applies to judgments against municipal corporations, as well as other judgments. State v. School District, 25 Nebr., 301. The statute makes no exception, and the court can make none; but our statute provides that no execution shall issue against municipal corporations, and'the remedy by mandamus to compel a levy of taxes to pay the judgment against such corporations performs the office of an execu
The findings of the trial court, that school districts No. 34 and No. 21 constituted, and still continue', one distinct, known as school district No. 34, for all school purposes, and that all of the inhabitants of both districts participated in the issue of the bonds to build a schoolhouse, are not supported by the petition or evidence, nor is the finding that both districts “have constantly recognized said judgment as valid and subsisting and have voted and levied taxes on said combined districts from year to year, thereby raising money to pay on said judgment, and the interest accruing thereon by its terms.” The evidence and stipulation between the relator and tax-levying body of Adams county show that about $2,000 has been paid on the judgment. The deputy clerk of the district court ivas sworn as a witness and presented a paper, which he testified was a list of the dates and payments that he had taken from the ledgers, and that one item of $500 on the list was placed
For the reasons stated in the foregoing opinion the judgment oi the district court is reversed and the cause dismissed.
Reversed.