61 Neb. 92 | Neb. | 1900
This was an action by Gottlieb Bantley upon the official bond of Elias Baker, who was at one time clerk of the district court of Lancaster county. The defendants demurred to the petition on the ground that it was deficient in substance. The court sustained the demurrer and, the plaintiff having declined to amend his pleading, judgment on the merits was given against him. It appears from the record that in 1882 Richard G. McWilliams obtained a. decree in said court against Bantley enforcing specifically a contract of sale. That decree, so far as it is material in this case, is as follows: “And this cause then coming on to be heard upon the petition and proofs the court finds that the plaintiff is entitled to the specific execution of the contract set forth in said petition, and thereupon the plaintiff produces in court the sum of $900 and the three several promissory notes of plaintiff in the sum of $500 each, each payable on or before one, two and three years from their date, respectively, and dated the fifteenth (15th) day of June, A. D. 1882, with interest at seven (7) ‘per centum per annum,
The claim that this action was barred by limitation is without merit. This court is, by Merriam v. Miller, 22 Nebr., 218, and Alexander v. Overton, 22 Nebr., 227, committed to the doctrine that an action on an official bond may be commenced within ten years from the time the right to sue accrued. The present cause of action did not accrue until Baker converted the $900 to his own use. Prior to that event there was no breach of the bond. There was never a right of action in favor of the plaintiff on the official bond of either Burr or Sizer for the $900, because they were guilty of no official misconduct in connection with it. Barker v. Wheeler, 60 Nebr., 470.
It is said that the plaintiff has not complied with the conditions of the decree and is, therefore, not yet entitled to recover the $900 paid to the clerk for his use by McWilliams. Upon this point it is sufficient to say that the condition of the decree was for the benefit, of
The judgment is reversed and the cause remanded for further proceedings.
Reversed and remanded.