11 Neb. 283 | Neb. | 1881
The demurrer to the petition was properly sustained. The facts stated do not constitute a cause of action. The plaintiff had no authority to prosecute an action in his own name on a demand, if one in fact existed,
If it be conceded that there were funds in the county treasury belonging to said school district, its treasurer was not only not authorized to sue for the same,- but he could not even rightfully demand or receive them, except upon a warrant of the director, countersigned by the moderator of the district. Indeed, it would be the duty of the county treasurer to refuse any demand upon him for such funds, unless thus formally made as the statute directs. Id., sec. 87.
Enough has already been said to show that the ruling of the district court upon the demurrer was correct, but there is still another particular in which the petition is totally deficient. The suit was commenced doubtless on the theory that, by refusing to pay over the money demanded of him as county treasurer, the defendant had rendered himself personally liable for the amount. And there is probably no doubt that for such refusal of a demand, properly made, he would be answerable to the distinct for the money wrongfully withheld. In the statement of such a cause of action, however, it would be necessary to show that the money was standing to the credit of the district when the demand was made. This the petition under consideration does not show, but, on the contrary, it is distinctly alleged: “ That said money was by the treasurer of the county of Saline placed in the treasury of the county of Saline, and the same still there remains as part of
If, as is alleged, the money is still in the county treasury, standing to the credit of the county school fund, and can still be traced as coming from the city of Crete, as is alleged, it should be duly apportioned by the county superintendent to the proper district. "When this is done, and not before, the county treasurer will be justified in paying it out on a proper warrant.
Judgment affirmed.