56 Neb. 557 | Neb. | 1898
This action arises largely out of the same state of facts as the Royal Trust Co. v. Exchange Bank of Cortland, 55 Neb. 663. The Royal Trust Company secured a judgment against the Exchange Bank in the county court of Lancaster county. An effort was made to vacate the judgment under section 1001 of the Code, but that effort failed for want of service of the conditional order. A transcript of the judgment was filed in Gage county, and an execution issued thereon was delivered to Kyd, who was then sheriff of Gage county. He proceeded to Cortland and levied the execution on the cash tray of the bank. Instant communications resulted between the bank and its attorneys in Lincoln. The attorneys took steps for the purpose of prosecuting error proceedings in the district court of Lancaster county, and superseding the judgment. Some arrangement was entered into whereby Kyd took or retained sufficient money to satisfy the judgment, and released the rest. The bank asserts that he merely retained that much under an agreement to refund it in case within a few days the bank could assure him that it had effected a supersedeas. Kyd asserts
The plaintiff claims that Kyd proceeded under color of his office only in making the levy, and that his subsequent receipt or retention of a specific sum of money under contract to refund it in a certain event was a personal agreement and not an official act. But all that he did towards the satisfaction of the execution was necessarily under color of his office, if not by virtue thereof. His contract to release or refund the money if the judgment should be duly superseded was a nullity. If his duty required him under such circumstanGes to repay the money, his promise created no additional liability. If his duty forbade him to do so, his contract was illegal and imposed no obligation. In either event the plaintiff must trace its right through the sheriff’s official duty and not through the special contract.
But plaintiff asserts that Kyd, by demurring to the original petition, appeared generally, and cites in support of that contention Kane v. Union P. R. Co., 5 Neb. 105. That case holds that the objection to the jurisdiction in a similar case is to the jurisdiction of the person of the defendant and not to the jurisdiction of the subject-matter, and that it is waived by general demurrer. Without considering whether that decision was sound in its prem
Reversed and remanded.