56 Neb. 212 | Neb. | 1898
This suit is upon the official bond of James E. Philpott, as county judge of Lancaster county. The court below sustained a general demurrer to the petition, and dismissed the action. Plaintiff prosecutes error.
The petition alleges, substantially, that plaintiff is a corporation and, by consolidation with the Burlington
The decision of .the district court was grounded upon the proposition that the action was barred by the statute of limitations, and while other questions are argued in the briefs, the only one necessary for us to consider is whether the statute had run against the cause of action at the time the suit was instituted. By section 9 of the Code of Civil Procedure it is provided: “Civil actions, other than for the recovery of real property, can only be brought within the following periods, after the cause of action shall have accrued;” and section 14 -of said Code declares: “An action upon the official bond or undertaking of an executor, administrator, guardian, sheriff, or any other officer, or upon the bond or undertaking given in attachment, injunction, or in any case whatever required by statute, can only be brought within ten years.” It is too plain to require discussion that under the foregoing provision an action on the official bond of.a county officer is barred in ten years after the cause of action accrued. It has been so held as to actions upon county treasurer's bond (Merriam v. Miller, 22 Neb. 218; Alexander v. Overton, 22 Neb. 227); and the same rule unquestionably obtains as to suits on the bond of a county judge.
The next inquiry is, when did plaintiff’s cause of action accrue? It is argued by counsel for plaintiff that the statute of limitations did not commence to run until the invalidity of the condemnation proceeding was finally adjudicated. We cannot yield assent to the proposition. No appeal was taken by either party from the award of the commissioners selected to assess the damages for the appropriation of the lots, so that if the condemnation •proceedings were legal, the rights of the parties were fixed and established, and one or the other was entitled to the money deposited not later than the expiration of the time for prosecuting an appeal from the assessment of damages. If the proceedings wk?b without jurisdic
Affirmed.