96 Neb. 682 | Neb. | 1914
On the 5th day of- March, 1907, a petition was filed in the district court for Douglas county in an action wherein that county sought to recover from Prank A. Broadwell, a former clerk of the district court for Douglas county, and the American Bonding & Trust Company, his surety, on his official bonds, the purpose of which was to recover from Broadwell the amount of certain fees, some of which he had collected, and some of which he had not collected, while clerk of the district court. There were three classes of claims contained in the petition, to wit: (1) Pees earned by such clerk, but not collected; (2) fees earned and collected for issuing naturalization papers under the federal laws; (3) fees received by him as a member and clerk of the board of insanity. To this petition certain motions were filed for more specific statements of the causes of action, but which seem not to have been ruled upon. On the 20th of December, 1909, the following stipulation was filed in the case: “It is hereby agreed by and between the parties hereto that, as a settlement and compromise of all matters in dispute herein and of all matters referred to in the plaintiff’s petition, judgment shall be taken in favor of the plaintiff and against the defendants in the sum of $1,250 and costs of this action.” This stipulation was signed by the county attorney for plaintiff' and the attorneys for defendants. On the 21st day of December of the same year, judgment was rendered on the stipulation in favor of plaintiff county, and against defendants, for the said sum of $1,250 and costs of suit, and which defendant Broadwell paid. On the 3d day of February, 1910, and during the same term of court, William G. Ure asked leave to intervene in the case. Leave was not granted, but
“It appearing to the court that the subject matter of this litigation involves the compensation of the defendant Broadwell, as clerk of this court, and that such compensation was fixed by the statute, and that the board of county commissioners was and is without power to increase or diminish the same, and was and is without power to compromise this controversy, it not being contended that the defendants or either of them are insolvent: Now, therefore, on its owm motion, it is by the court ordered and adjudged that the judgment heretofore entered herein, to wit, on December 20, 1909, be, the same is, hereby vacated and set aside, and this cause is hereby retained for trial. To which order of the court plaintiff and defendants severally except. It is further ordered that the moneys paid and assignment delivered by the defendant Broadwell in pursuance of the agreement and stipulation of compromise be returned to said Broadwell or held subject to his orders, to which order of the court plaintiff and defendants severally except.”
On the 19th day of May, 1910, plaintiff filed its amended petition consisting of six counts, or causes of action, a count for each year of defendant’s service as clerk of the district court for which he collected and received fees for services as member and clerk of the board of insanity of said county. The claims for fees collected for services rendered in the other capacities, as charged in the original petition, appear to have been abandoned.
Defendants answered, admitting that for the time named in the several causes of action defendant Broadwell was the clerk of the district court for Douglas county, that he was a member and clerk of the commission or board of insanity, that, as such member and clerk of such board, he collected fees for such services, and that they are still retained by him; alleging that the claims for all such fees received by him were duly verified, audited, allowed and paid by the county board, that no appeal was ever taken from such allowance, and therefore the right of plaintiff
The cause was tried to the court, who found the facts and conclusions of law in favor of plaintiff, and rendered judgment against defendants for the sum of $9,528.86» Motions were filed by defendants to set aside the findings of fact and conclusions of law, and for a new/trial, all of which were overruled. Defendants appeal. .
The exhibits referred to in the foregoing stipulation were attached thereto, and, with the exception of exhibit
“Exhibit A.
“Omaha, Neb., Sept. 24, 1909.
“To the Honorable, the Board of County Commissioners, of Douglas County, Nebraska. Gentlemen: The litigation that is now, pending between Douglas county and myself as clerk of the district court has been expensive-both for Douglas county and myself. The suit was originally instituted to recover a large amount of uncollected fees in civil cases, to recover from me money the county paid to me while serving as a member of the board of insanity, and money paid to me in connection with the naturalization of foreigners under a recent act of congress. The decision of the supreme court of this state in the case-against Judge Yinsonhaler would seem to dispose of the controversy over the uncollected fees. Mr. Howell, special attorney for the county, in his recent statement before the members of your board, conceded that there was no legal claim growing out of fees paid on account of services rendered in issuing naturalization papers. Such being the case, the controversy is now narrowed down to the claim based on statutory compensation paid me for services rendered as a member of the board of insanity.
“I think I am perfectly justified in the statement that until after the moneys were paid to me, which it is now sought to recover, no one questioned the right of the clerk of the district court to receive and retain the compensation paid to him as a member of the board of insanity. Everybody believed the clerk had the right, under the law,, to receive and retain that compensation. I have been advised by my counsel that under the law I have the right to collect for such services, and that I am not called upon to account for it in my settlement with the county. The county board audited and allowed the claims I filed for these services and paid me about $5,000. The records in the auditor’s office will show that I have on file, and which*690 I have not been paid, claims aggregating more than $3,000 for services rendered as a member of the board of insanity.
“If the county should prevail in this, suit against me and my bondsmen, and the supreme court should determine that I must turn the compensation over to the county, then I would be liable for something over $5,000 and interest, and judgment would go against me for that amount. ■On the other hand, if the supreme court should decide this controversy in my favor, then Douglas county would be required to pay me something over $3,000' and interest, that being the amount of the unpaid bills on file. I would be very glad if this litigation could be terminated and the matter amicably adjusted. None of us can tell just what will be the result of this litigation until after the supreme court has finally passed upon it. In order to effect a compromise, I beg to submit to you 'the following proposition : I will pay to Douglas county in cash $1,000 in full and complete settlement of all claims I have against the county, release all claims on account of money earned while a member of the board of insanity that have not been paid to me, and the county is to receive (receipt?) in full for all claims it has against me. I submit this proposition to your respectful consideration and ask that you advise me of your conclusion.
“Yours very respectfully,
“(Signed) Frank A. Broadwell.”
“Exhibit Al.
“Omaha, Neb., Sept. 25, 1909.
“George A. Magney, Deputy County Attorney, City. Dear Sir: Enclosed please find a communication from Frank A. Broadwell, former clerk of the district court, Douglas county, addressed to the board of county commissioners, stating that he would like to compromise the •differences in accounts between him and the county. The communication came up for consideration before the committee of the whole, and they instructed me to have you*691 prepare an opinion, whether or not the board of county commissioners could compromise with Mr. Broadwell upon any terms, and also an opinion as to the chances of Douglas county winning the suit for the collection of the insanity fees. Any figure or statement that you need in this matter can be'obtained from Mr. Solomon, county comptroller.
“Yours respectfully,
“(Signed) P. J. Trainor, Chairman Committee of the Whole.”
“Exhibit A2.
“Omaha, Neb., Oct. 2, 1909.
“Hon. P. J. Trainor, Chairman Committee of the Whole, Omaha, Neb. Dear Sir: I have your inquiry of September 25, relative to the suit of Douglas county against Frank A. Broadwell, former clerk of the district court. You ask if the board of county commissioners have the authority under the law to compromise this suit with Mr. Broadwell upon any terms, and you also desire an opinion as to the chances of Douglas county in securing a judgment against Mr. Broadwell in this suit for insanity fees collected and retained by him. In reply will say in my judgment there can be no question about the legal right of the board to compromise a suit of this character, if it is determined that a compromise is in th¿ interest of the county.
“The other question is more difficult. Our supreme court has held that the clerk must report and account for all fees collected by him. So far as I am able to learn, the court has at no time definitely decided the question of the fees earned by the clerk, as a member of the board of insane commissioners. The statute malees the clerk of the district court, the clerk of the board of insane commissioners and fixes the fees he may receive as such clerk, but the statute does not require the clerk of the insane commission to account for his fees, as such, to the county. In my opinion there is a chance that the court would hold that Mr. Broadwell should account to the county for all*692 fees collected by him as a member of the insane commission, and yet there is room for serious doubt as to what the result of the suit now pending may be. Because of the uncertainty involved in this question, I think the board of county commissioners Avould be justified in using their discretion as to whether this suit should be compromised or not. The county may Avin, and it may lose, and I think no one can at this time state with any degree of certainty what the final outcome of the suit may be.
“Very truly yours,
“(Signed) Geo. A. Magney, Deputy County Attorney.”"
“Exhibit B.
“Whereas, an action is now pending in the district court for Douglas county, Nebraska, wherein the county of Douglas is plaintiff and Frank A. BroadAvell et al. are defendants, in which the county ' of Douglas seeks to recover from the said Frank A. Broadwell, as former clerk of the district court, certain sums on account of uncollected fees earned in his office as clerk of the district court and also moneys paid to him as a member and clerk of the board of insanity:
“And, whereas, the said Frank A. Broadwell has pending before this board claims for fees earned by him as a member of said board of insanity and Avhich claims have not been allowed by this board:
“And, Avhereas, a proposition has been made by the said Frank A. BroadAvell to assign to Douglas county all claims for uncollected fees earned by him as clerk of the district court, to waive any claim for fees earned by him as a member and clerk of the board of insanity, and to release the county from any such claims, and to pay to the county the sum of $1,250 in full payment and satisfaction of all claims of Douglas county against him or his bondsmen:
“Now, therefore, for the purpose of fully settling and compromising all claims held by the county of Douglas against the said Frank A. Broadwell, as clerk of the district court, and settling all claims of the said Frank A.*693 Broadwell against Douglas county, be it resolved that the county attorney is hereby directed as follows:
“(1) To take from the said Frank A. Broadwell an assignment for all uncollected fees earned by him as clerk of the district court.
“(2) To take a release from said Frank A. Broad-well of all claims held by him against Douglas county on account of fees earned by him as a member and clerk of the board of insanity, and which have not been paid to him.
“(3) To accept judgment in the district court for Douglas county in the sum of $1,250 and costs in the action pending in said county, which said judgment shall he in full of all claims of said Douglas county against the said Frank A. Broadwell; and upon the execution of said assignments, releases, and the payment of said judgment, all claims against the said Frank A. Broadwell, as clerk of the district court, shall be and hereby are fully satisfied, compromised and discharged.
“(Signed) P. J. Trainor,
“(Signed) L. W. Bruning,
“(Signed) John Grant,
“(Signed) C. J. Pickard,
“(Signed) Jeff W. Bedford.”
The cause was tried to the court without the intervention of a jury. An order was made by the court holding that the petition for intervention be denied, and finding that the subject matter of this litigation involves the compensation of the defendant as clerk of the district court; that such compensation is fixed by the statute; and that the board of county commissioners was and is without power to compromise this controversy, it not being contended that the defendants or either of them are insolvent. By request the court made special findings of fact and conclusions of law. The findings of facts are in accord with the stipulation of facts, and need not be set out here at length, but, among which, it is found, in the matter of the compromise, that at that' time there was a bona fide dispute and contention between the county of
Two principal questions are presented for decision: First, Is defendant liable upon his bond for the fees and compensation collected and received by him from the county? Second, If so, has the compromise any legal or binding force?
It is also insisted as a third contention that the court exceeded its legitimate authority in 'setting aside and vacating its former judgment, but we are unable to detect any serious legal question here. It must be conceded, for it is well-settled law, not only of this state, but of all others, that during the term at which a judgment or order is made the court has the power and authority to recon
It is said, both by the court and counsel, that there was-a good-faith dispute and contention between the county and defendant as to defendant’s liability for the fees and compensation received by him. It is the well-settled rule of law that, ordinarily, in case of a dispute between persons, whether natural or artificial, a compromise and adjustment of the differences will, in the absence of fraud, collusion or mistake, be binding upon the parties. That the law favors settlements is a common and well-understood maxim; but it is contended by plaintiff that in this case there was nothing to compromise; that the law fixed the status of the parties, and, if it was the official duty of defendant to report and account for the fees, there could be no question to compromise.
In view of the statute and our past decisions, we cannot adopt the contention of defendants, and are of opinion that the law was and is well settled that it was the duty of defendant to account for the fees in controversy, and that there was not, and could not be, any legal or reasonable ground for dispute or controversy over the subject.
It is clear, and conceded by defendant, that, if the fees in dispute were to be considered the fees of the office of the clerk of the district court, there could not well he any question as to the duty of defendant to report them. The question then arises as to defendant’s official relation to the county, for the law is clear that all fees of the clerk’s office should be reported.
Section 17, ch. 40, Comp. St. 1911, provides: “In each organized county of the state there shall be a board of com
Section 18, ch. 40, Comp. St. 1911, provides that before entering upon the duties of their office the persons so appointed shall take and subscribe to the usual oath of office. By this it is made plainly to appear that but two members of said commission are to be appointed by the judge creating the board, or commission. The clerk of the district court, by virtue of his office as clerk, is to be the other member. The two appointees are required to take the official oath. The clerk is not, because he is already under oath and bond. So far as his place upon the commission is concerned, he is entirely beyond the reach of the judge making the appointments. If he is clerk of the district court, he is thereby a member of the commission — so declared by láw. While he is clerk of the commission, he is such by virtue of being clerk of the district court, and the duties are imposed upon him as such clerk of the district court. It would seem to follow that his compensation is not increased thereby.
It may be further noticed that as early as June 8, 1905, in Boettcher v. Lancaster County, 74 Neb. 148, the identical question here presented was decided by this court, and it was there held that “a clerk of the district court is required to account for the fees earned by him as a member of the board of commissioners of insanity.” As that decision was made long before any suit was brought in this case or before any effort at a compromise was inaugurated, it would seem that all doubt as to defendant’s liability was effectually put at rest, and there was nothing which was the subject of compromise, it being defendant’s clear legal duty to report the fees and account for them.
We are not unmindful of the many cases cited by counsel, but the citations cannot be referred to and discussed in this opinion. We are satisfied with a review of the statute of this state and the decisions of this court.
It follows that the judgment of the district court must b.e and is
Affirmed.