51 Neb. 716 | Neb. | 1897
At tbe general election held in Holt county in 1889 George C. Hazelet was elected county clerk of said county,
The first point presented in the argument is that there is no sufficient statement of a cause of action in the peti tion; hence the judgment based thereon is not sustained and must be set aside. In this connection we are directed to the following, portion of an allegation of the petition, viz.: “On the 23d day of December, 1889, the defendant George 0. Hazelet, as principal, and the defendants Joseph S. Bartley, Milton Doolittle, Arthur C. Grossman, Howard Miller, C. N. Forney, Jacob Smith, Seth Woods, Arthur L. Morse, J. H. Colburn, Clarence H. Walrath, John Forrest, Charles L. Sturdevant, W. H. Hendrix, C. A. Jarvis, J. C. Purnell, and H. L. Putnam, as sureties, made and delivered to plaintiff an obligation in writing.” It is claimed that it is not pleaded therein that the bond was executed by plaintiffs in error, that the word “made” has no such significance as to warrant its use in express-, ing the fact of the execution of the bond, and that it did not express it; therefore, the execution of the instrument was not stated, and the petition was defective for the lack of such statement. The use of the word “made” to set forth the execution of the bond is in exact compliance with the wording of a form for petition in an action on official bonds given in Maxwell, Pleading & Practice, page 202, form No. 123, — from which the form of the petition
A copy of the bond was given in the body of the petition, and evidently relied on by the pleader as a statement of certain of the facts necessary to show a cause of action. This, it is argued, was insufficient. It is also urged that breaches of the conditions of the bond were not pleaded. The petition did contain a statement that the principal therein had been elected to the office, for the faithful perfoiunance of the duties of which the bond in question was conditioned; also that the principal and sureties executed and delivered the bond. The instrument, as copied in the petition, was to be construed as a part of it, and the conditions as therein contained were sufficient allegations of the covenants and obligations of the parties principal and sureties. In the opinion in the case of Clement v. Hughes, 17 S. W. Rep. [Ky.], 285, an action on a guardian’s bond, there is the following statement: “In this instance the petition avers that the guardian executed bond with the appellants as his sureties, and then the bond is copied as a part of the petition in hcee verba. This was sufficient. Where the writing is copied, the covenant of the party, of course, appears, and it supplies the otherwise necessary averment as to what the obligor covenanted to do.” “It is sufficient to set forth the very words of an instrument; and if it be so pleaded the court will judge of their legal effect.” (Elliott v. Roche, 67 N. W. Rep. [Minn.], 539; Grimes v. Cullison, 41 Pac. Rep. [Ore.], 355; Budd v. Kramer, 14 Kan., 101; Maxwell, Pleading & Practice, 89; 1 Chitty, Pleading, 306; Pefley v. Johnson, 30 Neb., 529.)
The allegations of the petition as to which the jury awarded the county a recovery were that Hazelet had received for making road books and assessors’ books, during the year 1890, $100 for preparing each set of books, and like sums for the performance of similar duties during the year 1891; that during the year 1890 he had received a fee of $2 for each of 179 certificates of incumbrances on property furnished to the sheriff in actions of foreclosure, preparatory to appraisements and sales, and in 1891 he had received $2 for each of 312 of such certificates; that he had not entered either of the sums received for making road and assessors’ books on his fee book as fees earned and collected, and of the amounts collected for the certificates of incumbrances he had entered in the fee book but twenty-five cents of the sum collected for preparing and furnishing each one. By section 42 of chapter 28 of the Compiled Statutes it is prescribed that every county clerk whose fees shall exceed $1,500 per annum shall pay the excess into the county treasury. In section 43 of the same chapter it is made obligatory on certain officers, including county clerks, to make quarterly reports under oath to the county board, showing the different items of fees received, from whom, at what time, and for what service, the amount received since the last prior report, and the whole sum received for the current year; and section 44.of the chapter requires each of the officers referred to in the act to keep a fee book, in which must be entered each and every item of fees collected, showing in separate columns the name of the party from whom received, the amount received, the time, and for what service the fee was charged. “There is no room
“Page 318 of the fee book kept by defendant G. 0. Hazelet, marked ‘Plaintiffs’ Exhibit K.’ March 31, 1890, to fees for the month of January, $161.20. To fees for month February, $387.95. To fees for month of March, $135.60. Total fees for first quarter, $1,281.75. Defi*721 ciency, $123.72, the amount the clerk is entitled, to credit upon the foregoing statement of fees as follows, to-wit: Clerk’s salary three months, $375. Deputy’s salary three months, $200. Assistants’ salary for three months, $375. Postage and express, $58.17. Making assessors’ books, $100. Total, $1,108.17.
“I hereby certify that the above is a correct abstract of the legal fees received by me and the disbursements made as county clerk of Holt county, Nebraska, for the quarter commencing January 2, 1890, and ending March 31,1890, as appears from the records of my office.
“Dated this 31st day of March, 1890.
“G-. C. Hazelet,
“County Cleric of Holt County, Nebraska.
“Subscribed and sworn to before me this 1st day of April, 1890. John McBride,
“Cleric District Court, cmd Seal.”
In the one for the succeeding quarter appeared an entry of credit similar to the one in the foregoing copy, except that the one was for “making assessors’ books,” and the other “road books;” and the others with which we have to deal appeared in subsequent quarterly statements in similar form and in the same connections as credits claimed by the clerk and retained of fees collected. It. was agreed that the fee booics should not be sent to the supreme court, but remain in the office of the county clerk unless they were required in the supreme court in an examination of the questions to be decided. It was further agreed “that the items in dispute do not appear in such fee books upon any pages except the ones which are copied into this record as exhibits.”
From the foregoing facts it is clear that the only entry of either of these items in the fee book was in the quarterly statement, and as a credit claimed, not as a fee collected. The county clerk was required by law to prepare and deliver the books to the assessors, and the county board was authorized to pay him for preparing the books
There were mistakes in the settlements of the board with the county clerk, in that he had not entered in his fee book the fees received for the certificates of liens furnished to the sheriff, nor the amounts he retained as pay-, ment for the preparation of the assessors’ books, and in that he retained of the fees collected, amounts which he claimed as credits which he asked for preparation of “road books.” (Kemerer v. State, 7 Neb., 130; State v. Roderick, 25 Neb., 629; Heald v. Polk County, 46 Neb., 28; Bush v. Johnson County, 48 Neb., 1.) These were not claims filed against the county, allowed by the board, and no appeal taken from such allowance. Had they been, they would have come within the rule announced in Sioux County v. Jameson, 43 Neb., 265, Heald v. Polk County, 46 Neb., 28, and Cuming County v. Thiele, 48 Neb., 888, that “Where a claim is presented to a county board for its examination and allowance or rejection, in the examination of such claim the board acts judicially, and its order or judgment allowing or disallowing the claim is conclusive unless reversed in appellate proceedings.” (Sioux County v. Jameson, supra.) Here fees were retained under guise of credits claimed, and improperly sanctioned by the board in the examination and settlement of the accounts. The approval of the board was not final. (Kemerer v. State, supra; Heald v. Polk County, supra; and other cases cited to the same proposition.)
It is argued that if the county was entitled to recover the principal sums, it should not have been awarded interest on them, as it was. That the rule, “Where money is paid to one, who receives it believing that it is his due, he is not liable for interest upon it before demand is made, and refusal to pay, nor until he shall have reason to be satisfied that he ought to repay it,” is applicable, and as no demand was pleaded or proved, the county should not have recovered any interest. The money here was com
No available errors have been presented; hence the judgment of the district court must be
Affirmed.