67 Neb. 202 | Neb. | 1903
This was an application for a peremptory writ of mandamus to compel the respondent, as director of school district No. 94, Cass county, to examine and approve the bond of the relator as treasurer of said district. The alternative writ recited that the relator, “within the time required by law duly executed and presented to the school board of said school district * * * a good and sufficient undertaking as required by laiv in compliance and in conformity with the laws of the state,” and that respondent “refused to examine and approve said undertaking.” The return to the writ, which was in the form of an ordinary answer, was in effect a general denial, coupled with certain admissions. Upon a hearing the court found generally in the relator’s favor
We do not deem it necessary or advisable to enter upon a discussion of these questions or to determine which of these diverse views is correct, for, in our opinion, the case must be disposed of on other grounds. A few days after the entry of the judgment, and long before the motion for a new trial had been disposed of, the respondent filed with the clerk of the district court the following paper:
“Comes now the respondent and because an execution has been issued against him in said cause here, now, to save further costs pays into court under protest the amount of the judgment for said costs taxed at $65.98 and shows to the court that he has approved the bond as ordered by the*204 court in above cause all under protest, and at all times excepting to tlie order of said court in the premises.
“January 14, 1901. William Betts,
“By H. I). Tiiavis, Ms atty”
It'is also stated in the brief of relator, and not denied in that of respondent, that the school district “has repaid respondent the costs adjudged against him, and respondent received and accepted the same.” It is true that this fact does not appear in the record, but it does appear, as we have seen, that this action was required of the district as one of the conditions of the judgment sought to be reversed, and no one is here on behalf of the district complaining of this order. Such being the facts, the case falls within the rule announced as follows in City of San Diego v. Board of Supervisors, 97 Cal., 438, where the respondents, after resisting an application for mandamus to compel them to levy a tax, complied with the commands of the writ and then took an appeal: “The defendant voluntarily complied with the mandate of the court, and the judgment was thereupon satisfied and its force exhausted. After it had thus been satisfied, there was nothing in the judgment which the court had rendered of which the defendant could complain, or about which it could say that it was aggrieved. A reversal of the judgment would not of itself set aside the levy of the tax which had been made, nor did the appellant, by its compliance with the judgment, lose any property or rights of which restitution could be made in case of a reversal. Code of Civil Procedure, sec. 957. The proceeding was for the purpose of compelling the defendant to perform an official duty, and not one in which it had any personal rights to be effected.” See, to the same effect, Leet v. Board of Supervisors, 47 Pac. Rep. [Cal.], 595. Under similar facts it Avas observed in State v. Napton, 10 Mont., 369, 370: “A judgment of any kind from this court Avould present a peculiar result. An affirmance would be to direct the district court to issue a writ, Avhich that court has already issued, and which has been obeyed. A reversal Avould be to say to the lower court, you may not order the clerk
There is still another ground upon which it would seem that the case might be disposed of. The term which respondent was serving when the writ 'was issued has expired. At the hearing in January, 1901, he testified that he had held the office of director “two years last annual meeting.” His term must have ended, therefore,’ at the annual meeting in June, 1901. Compiled Statutes, ch. 79, subdiv. 3, sec. 1.
For the reasons stated in the foregoing opinion, the error proceeding is
Dismissed.
Cobbey’s Annotated Statutes, see. 9008.
13 L. K. A., 745.
Cobbey’s Annotated Statutes, sec. 11045.