66 Neb. 191 | Neb. | 1902
This action was begun in the district court for Dawes county. The petition alleges several causes of action on as many different county warrants of that county. As a defense to some of the warrants, it was alleged that they were ordered drawn and issued without authority, because in excess of 85 per cent, of the levy; and as to other of the warrants the defense was the statute of limitations. The action was tried to the court without a jury, and both of the said defenses were sustained, and judgment entered accordingly. The plaintiff has brought the case here upon petition in error.
1. After the warrants had been drawn against the levies for the bridge, road and insane funds for the year 1893, sufficient to pay all claims against those funds, no other expenditure chargeable to those funds being necessary, in the judgment of the county board, and the levies for those funds for that year not being exhausted, the county board ordered the remainder of the levies transferred to the general fund. No warrant has since been allowed upon the funds for which the said levies were originally made. At that time practically none of the taxes levied for those funds had been collected, and the warrants that had been drawn against them were then outstanding. The
In. 1881 both of these sections
2. As to the plea of the statute of limitations, it appears that the warrants to which this défense is urged were issued at various times from the 27th day of July, 1893, to the 1st day of March, 1894, inclusive, and that this action was begun on the 17th day of May, 1899. It is insisted that as more than five years had elapsed from the issuing of the warrants to the time of the commencement of the action the action as to those warrants is barred by the statute of limitations. In Brewer v. Otoe County, 1 Nebr., 373, it was held that “the statute of limitations does not limit the time within which proceedings to enforce the payment of county warrants shall be instituted.” This holding was predicated largely upon statutes then in force, but which have since been superseded. And in Arapahoe Village v. Albee, 24 Nebr., 242, this court, by Maxwell, J., after quoting somewhat at large from the opinion of. Judge Lake in Brewer v. Otoe County, supra, said: “In view of this and other special legislation in regard to county warrants, the court held that they were excluded from the operation of the statute of limitations. That decision is no doubt correct as applied to the facts of that case. A considerable part of the debts for which these warrants were issued was incurred before the act ‘To prevent overdrawing public funds in counties,’ etc., was passed. Laws of 1859, pp. 101, 102. Prior to the passage of that act there was practically no restriction upon the poAver of county commissioners to issue Avarrants, and in more than one county this power had been recklessly exercised, and a very large number of warrants issued..
The county not being liable to suit upon a claim until the, county board has acted thereon, it would seem to be reasonable to suppose that the legislature intended that no suit should be brought against the county until such claim, when allowed, might be paid by the county in the ordinary ■ course as prescribed by statute, so that no right of actios accrued to_the plaintiff upon these warrants until there was money for their payment in the fund upon which the warrants were drawn, or the proper authorities had had opportunity to provide funds to pay them and had neglected to do so. Apache County v. Barth, 53 Pac. Rep. [Ariz.], 187; Potter v. City of New Whatcom, 20 Wash., 589, 56 Pac. Rep., 394, 72 Am. St. Rep., 135. In the cass at bar, then, this right of action did not accrue five years before the action was brought, and plaintiff should be allowed to recover on these warrants. The judgment of the district court is reversed and the cause remanded for further proceedings in accordance with'this opinion.
Reversed and remanded.-
Cobbey, Annotated Statutes, sec. 4508.
Compiled Statutes, 1901, ch. 18, art. 1, secs. 34, 36; 2 Cobbey, Annotated Statutes, secs. 4453, 4454.