| Neb. | Jan 15, 1880
The petition states in substance that the state of Nebraska, by an act of the legislature, approved February 15, 1869, donated to the county of Saline 1,000 acres of internal improvement land to aid the county in the erection of a bridge across the Blue river, said lands being conveyed to the county in March, 1869; that said lands were valued at the sum of $5000, and were conveyed to one Hunt, who had contracted to build said bridge, and had given bond for the completion of the same, he being paid the further sum of $500; that on or about the fourth day of October, 1870, and before the construction of any portion of said bridge, the plaintiff took* an assignment of said contract from Hunt, and received a conveyance of said land from him, and that the commissioners made a novation of said contract, whereby the plaintiff was to erect the bridge, and the commissioners then desiring to change the plan of the bridge from a Killian to a Howe truss, made said contract with the plaintiff, and paid him therefor the sum of $1000 additional; that the commissioners thereafter changed the location of said bridge to the section line between sections 28 and 29, in township 8 north, in said county, at which point the plaintiff erected said bridge, and the same was duly accepted; that said bridge was 100 feet in length, and the approaches to the same 108 feet in length; that said bridge was of the value of $6160, and that the support to the bridge was worth the sum of $500; that the title to said lands wholly failed, neither the
It appears from the bill of exceptions that the plaintiff challenged the “ panel and array of the petit jury impaneled and summoned to try the issues joined between the plaintiff and defendant,” because the county commissioners did not “select sixty persons having the qualifications of jurors in a number as near as may be proportionate from each precinct in the county,” etc. And also that one, Hall, had been drawn and acted as juror at the last term of the court. The motion was supported by an affidavit, which is not denied, and also by a copy of the original canvass of the votes at the last general election in Saline county, from
Section 658 of the code of civil procedure provides that “in each of the counties of this state, where a district court is appointed or directed to be holden, the county commissioners of the county shall, at 'least fifteen days before the first day of the session of the court, meet together, or any two of them may meet, and select sixty persons possessing the qualifications prescribed in section 657, and, as nearly as may be, a proportionate number from each precinct in the county, and shall, within five days thereafter, furnish to the clerk of the district court of the county, or his deputy, a list of the names of the persons selected.” Gen. Stat., 642.
Section 659 provides that “the clerk or deputy clerk receiving the names shall write the name of each person selected on a separate ticket and place the whole number of tickets into a box or other suitable and safe receptacle, and shall preserve the names furnished by the commissioners in the files of his office.” Gen. Stat., 642.
Section 660 provides that “the clerk of the district court or his deputy, and the sheriff, or if there is no sheriff the deputy sheriff, or if there is no deputy sheriff the coroner of the county, shall, at least ten days before the first day of the session of the district court, meet together and draw by lot out of the box or receptacle wherein shall be kept the tickets aforesaid, sixteen names, and the persons whose names, shall be drawn shall be grand jurors; and the clerk and sheriff shall then draw twenty-four additional names, and the persons whose names are drawn shall be petit jurors.” Gen. Stat., 643.
There is no direct allegation that the M. "W. Hall summoned as a juror at the October term is the same person summoned as a juror at the April term. Whether he is the same person or not is susceptible of
'The remaining objections may be considered together. The plaintiff took an assignment of the contract for the erection of the bridge in question with at least the tacit consent of the commissioners. He constructed the bridge in accordance with the change in plans and location made by them; that the bridge was properly accepted there is not a shadow of a doubt from the testimony. No objection is made to the contract, and it is admitted that the title to the lands conveyed to the plaintiff' has entirely .failed. Is the plaintiff therefore entitled to be paid the fair value of the bridge at the time of its completion ?
In the case of Pimental v. City of San Francisco, 21 Cal., 862, where certain real estate belonging to the city had been sold finder a void ordinance, and the proceeds paid into the city treasury, the title having failed, and action brought against the city for the recovery of the money paid, the court say: “ The liability of the city arises from the use of the moneys or her refusal to .refund them after their receipt. The city is not exempted from the common obligation to do justice which binds individuals. Such obligations rest upon all persons, whether natural or artificial. If the city obtain the money of another by mistake, or without authority of law, it is her duty to refund it, from this general obligation. If she obtain other property which does not belong to her it is her duty to restore it, or if used, to render an equivalent therefor, from
In the case of Paul v. The City of Kenosha, 22 Wis., 266" court="Wis." date_filed="1867-09-15" href="https://app.midpage.ai/document/paul-v-city-of-kenosha-6599866?utm_source=webapp" opinion_id="6599866">22 Wis., 266, the plaintiff had purchased certain bonds of the city, which were void for want of power to issue them. It was held that he was entitled to recover the amount paid. The court say: “The city has had that amount of money and legal scrip for its city bonds, which turn out to be of no value whatever. It seems to fall under the general rule of law that when a party sells an article which turns out to be valueless and not of such a character as he represented it to be, he is liable to his vendee as upon a failure of consideration. The city bonds, it appears, wex’e void when the agent of the city sold them to the plaintiff. Is it just and equitable for the city to retain the money which it has received for its own worthless bonds ? ”
In the case of the Bridge Company v. Frankfort, 18 B. Monroe, 41, the bridge company was requested by the city authoxities to state the terms upon which the city might attach its water pipes to the bridge to cax’ry the water from one side of the xdver to the other. The company answered, stating its terms, upon which the city council took no action, but proceeded to extend the water works and used the bridge. It was held that the city was liable. Judge Dilloxi thus states the rule: “If the officers or agents of a muxxicipal corporation, acting under ordinances which are void, make sales and deeds of corporate property which pass no xight to the purchaser, and caxx never ripen ixxto a title, and receive the purchase money and place the saxne in the
Reversed and remanded.