75 Neb. 722 | Neb. | 1906
Eccles sued Walker upon his official bond as justice of tbe peace to recover $1.25 illegal fees exacted from bim, and also tbe penalty of $50 provided in section 34, chapter 28 of tbe Compiled Statutes 1905 (Ann. St. 9060). Tbe trial resulted in a judgment against Walker for tbe amount claimed, but tbe district court dismissed the action as against tbe surety, the United States Fidelity & Guaranty Company. From this order Eccles appealed, and tbe court reversed the order and remanded the case for a new trial. (72 Neb. 734.)
Tbe opinion is direct and specific that the surety on tbe official bond of an officer is liable for tbe penalty of $50 denounced against tbe exaction of fees in excess of those provided and limited by the statutes of this state, and on the retrial of tbe case tbe court so charged tbe jury, and refused an instruction, tendered 'by the defendant surety, that the penalty provided by statute could be recovered only from the officer guilty of exacting tbe excessive fee. The beadnote to tbe former opinion is in tbe following language: “Sureties upon an official bond are liable for a statutory penalty incurred by their principal by taking illegal fees.” The opinion cites Kane v. Union P. R. Co., 5 Neb. 105, and Phœnix Ins. Co. v. McEvony, 52 Neb. 566, as cases involving tbe question and bolding tbe surety liable. A reexamination of these cases convinces us that in neither was tbe question directly raised or decided. In Kane v. Union P. R. Co. tbe treasurer of Cheyenne county seized and levied' upon four locomotives of tbe railroad company for tbe payment of delinquent taxes due tbe county. Tbe company, after tbe seizure of its locomotives, tendered to tbe treasurer tbe full amount
In Phœnix Ins. Co. v. McEvony, supra, the company brought ten separate actions against McEvony, the sheriff of Holt county, and the sureties on his official bond to recover certain fees which, it alleged, the sheriff had charged and taken from it for services performed by him as sheriff, and which it claimed were in excess of those permitted by statute. The penalty denounced by statute for taking illegal fees was also asked in each case. After the plaintiff had introduced its evidence and rested, the district court, on motion of the defendant, compelled the insurance company to elect on which of the two causes of action stated in its petition it would stand, that is, the court compelled the insurance company to abandon the cause of action against the sheriff for ’the recovery of the illegal fees collected or to abandon the cause of action for the statutory penalty. This court, in discussing the question, said: “This action of the court was erroneous. The learned
The grounds upon which the defendant’s motion to compel the plaintiff to elect Avas made does not appear Avitli certainty, but from the foregoing quotation it is quite plain that the motion Avas based upon the Avell-understood rule that tAvo causes of action, one upon contract and one for a tort committed, cannot ordinarily be joined in the same petition. So far as we are able to judge from the opinion, the question of the liability of the sheriff’s sureties for the statutory penalty Avas not raised in the district court and was not a question presented to this court for its decision. The only question decided Avas that the two causes of action, conceding the liability of the sureties for the statutory penalty, might be joined in the same action.
Passing now to the liability of a surety for the statutory penalty provided by section 34 of chapter 28, supra, against the principal for exacting illegal fees, the wording of the statute is to our minds conclusive that ’the officer alone is subject to the penalty. The section is as folloAvs: “If any officer, AAdiatever, Avhose fees are hereinbefore expressed and limited, shall take greater fees than are so hereinbefore limited and expressed, for any service to be done by him in his office, or if any such officer shall charge or demand, and take any of the fees hereinbefore ascertained and limited, where the business for Avliich such fees are chargeable shall not be actually done and performed, such officer
In City of Hastings v. Foxworthy, 45 Neb. 676, this court announced the following rule: “An appellate court, on a second appeal of a case, will not ordinarily reexamine questions of law presented by the first appeal, but where the case was on the first appeal remanded generally for a new trial and the same questions are presented on the second trial, the appellate court is not bound to follow opinions on questions of law presented on the first appeal and may reexamine and reverse its rulings on such questions, and should do so when the opinion first expressed is manifestly incorrect.”
It Avill be remembered that on the first trial of this case in the district court the court dismissed the action as against the surety, the present appellant. This was manifestly wrong, as no one contends that the surety was not liable upon Walker’s bond for the amount of the illegal fee exacted from Eccles. This error required a reversal of the case, and the case was reversed generally and remanded for a new trial. On the second trial the liability of the surety for the penalty was again raised and that question is a second time before us for determination. If the first opinion was manifestly wrong in holding the surety liable for the statutory penalty, as we believe it was, then the rule in City of Hastings v. Foxworthy, supra, should obtain and the correct rule of law should now govern.
We recommend that the judgment be reversed and the action dismissed against the United States Fidelity & Guaranty Company, so far as judgment is sought against it for the statutory penalty of $50.
Reversed.