74 Neb. 211 | Neb. | 1905
On the 26th day of June, 1903, the plantiffs commenced this action against the state in the district court for Lancaster county, and thereafter filed their amended petition, from which we gather the following facts: On or about the 26th day of .January, 1893, the treasurer of Lancaster county collected, and deposited in the Capital National Bank of Lincoln, Nebraska, an authorized county depository, the sum of $35,694.54 of public moneys. On that date the bank failed, and of the money thus deposited there was lost, absolutely, the sum of $32,919.32; $5,000.40 of this money was state funds. On the 31st day of January, 1894, the county treasurer of said county paid to the state treasurer the full amount of the state’s funds so lost by the bank failure, thus reimbursing the defendant; and it was alleged that such payment was made without the consent of the county, without any authority from its board of commissioners, and by inadvertence and mistake. It was also alleged in the petition that the sum so paid to the state constituted a just obligation owing from the defendant to Lancaster county at the time of the bringing of this action. It was further alleged that on the 4th day of April, 1903, the state senate, passed a resolution authorizing the bringing of this action for the accounts and items sued on. The petition concluded with a prayer for an accounting, and a judgment against the defendant and in favor of the plaintiffs for such sum as might be found due, together with, interest at 7 per cent, thereon from the 31st day of January, 1903. The state demurred to the amended petition, and the demurrer was. sustained for two reasons: First, that it Avas shown on the face of the petition that the cause of action was barred by the statute of limitations; second, that the petition did not state facts sufficient to constitute a cause of action. The plaintiffs elected to stand on their amended petition, the action Avas dismissed, and is brought here by petition in error,
“Now, what is meant in this constitutional provision by ‘claims upon the treasury’ which the auditor must examine and adjust? We take it that it means claims which the state is or may be under legal obligation to pay, such as the salaries of its officers and employees, the cost of erecting buildings, and the expense attendant upon the maintenance of its prisons, asylums, schools, and other institutions.”
This is in harmony with many other decisions of our court in which it is held that statutes providing for the presenting of claims to county or city authorities apply only to claims arising from contract or some direct legal obligation, and not claims arising from tort. It is only in those claims that are properly presented to the auditor, and that he is authorized to allow, that appeals provided for by the constitution and by statute can be taken. The claim involved in the case at bar could not be brought into court in that way. The law maltes no provision for the payment of such a claim, and it is not included in the provisions of the statute or the constitution above mentioned.
It must be brought into court by consent of the legislature. If it is not necessary under the statute that such claims as this should be presented to the auditor at all, then, of course, the two years’ limitation contained in section 6, supra, does not apply. The statute of limitations as a defense is a personal one, and may be waived, even if the claim has been barred by statute. The state might waive that defense and authorize this suit, and we think by its action in this case it has done so. When this claim was presented to the legislature and leave to sue was asked for, more than two years had already run, which would
It is claimed on the part of the state that there is a misjoinder of parties plaintiff, but this question is one which cannot be raised by demurrer, so that point requires no further consideration.
Considering now the merits of the case as presented by the amended petition, it appears that the county treasurer of Lancaster county paid to the state certain money belonging to the county, without any authority therefor, and such payment was made by inadvertence and mistake. If these allegations are true, they state a cause of action, and are sufficient to resist a general demurrer. This fact seems to be conceded by the state, for the only defense presented by the brief and argument of the attorney general is the limitation contained in the statute above men
For the foregoing reasons, the judgment of the district court is reversed and the cause remanded for further proceedings.
Reversed.
The following opinion on rehearing was filed April 5, 1906. Judgment of reversal adhered to:
In the original brief of the state which was considered upon the former hearing, it was contended that the action was barred by the limitations contained in section 6, article III, chapter 83, Compiled Statutes, 1903 (Ann. St. 9094), which provides that persons having claims against the state shall exhibit the same to the auditor within two years after such claims shall accrue. It was not contended that the general statute of limitations applies. In answer to this argument on behalf of the state, it was said in the
1. It is now contended that the general statute of limitations applies, and that the resolution of the senate is not a waiver of .this defense. Upon this contention several authorities are cited. Among them is Hepburn’s Case, 3 Bland (Md.), 95, 109. Hepburn was a creditor of William and Robert Mollison. The property of the Mollisons had been confiscated and sold by the state, and Hepburn’s contention was that, by this confiscation and sale, he was prevented from realizing upon his claim against the Mollisons. The statute of limitations had run upon his claim against the Mollisons, and the chancellor held “that there is sufficient evidence to show that this debt * * * has been long since paid and satisfied by the Mollisons themselves.” And the chancellor further said (p. 125) : “The great lapse of time since it became due, without the delay being in any manner reasonably accounted for, gives rise to a presumption, altogether irresistible, that it must have been, in some way or other, fully and completely paid and satisfied.” There is no suggestion in the opinion of the chancellor that there would be any presumption that the state had paid this claim to Hepburn. In the case at bar the delay in bringing the action is reasonably accounted for. It could not be brought without leave of the state, and it was brought within three months after such leave Avas obtained. Another case cited and relied upon is Baxter v. State, 10 Wis. *454. In that case the action was authorized by a general statute, which had been in force, and under which the plaintiff might have sued at any time after the claim accrued. This right of action had
2. It is next contended in the brief of the state that payment of money justly due cannot be recovered back on account of mistake. This leads to a consideration of the question whether this money was justly due the state from the county. It was not within the province of the treasurer to determine this question. The fact that the treasurer had paid over 'the money to the state without any authority from the county board ought not to prejudice the legal rights of the county; so that the question is whether the loss of this money should fall upon the state or upon the county. It must be remembered that this question is being determined upon the allegations of the petition alone. The case is now presented to this court upon a general demurrer, which raises only the question of the sufficiency of the petition. Under these allegations we think that the money lost was the loss of the state, and that the county was not liable therefor to the state. In County of Valley v. Robinson, 32 Neb. 254, it was said: “The county is charged with the levy and collection of all county and state taxes, and until state taxes are paid they remain a subsisting charge against the county.” The action was brought by the county against the treasurer and his bondsmen to recover taxes collected by him for the state. The question was whether the county had sufficient interest in the collection of these»
For these reasons, our former judgment upon this demurrer is adhered to.
Judgment accordingly.