75 Neb. 318 | Neb. | 1905
In August, 1893, the city of Omaha began proceedings in the exercise of the power of eminent domain for the appropriation of certain lands to the use of the public for a street. It is agreed that these proceedings were in all respects regular and according to law down to and including an order of the mayor and council, made in November, 1893, approving and confirming an award of a
The argument of the defendant in error, in brief, is this: That all the proceedings subsequent to the order confirming the award of damage's, including the attempted levy, the' appropriation ordinance and the -warrants, were and are wholly voiel, and are ine*e>mpe'te'nt, singly or collectively, to constitute a cause of ae:tion; and that the confirmatiem of the award of damages, which this court has held, in City of Omaha v. Clarke, 66 Neb. 33, constituted a cause of action, was made more than five years before the beginning of the suit, and is the emly cause of action the property owner ewer had, anel is barred, the void proceedings being insufficient as acknowledgments or promise's to toll the statute. But we think the elecision in City of Omaha v. Clarke is distinguishable from the; case at bar. In that case it was e:ontended that the cause of action accrued at some earlier date than that of the order confirming the award, and apparently it was also contended that the order did not constituí:e an obligation in writing. The court overruled both these contentions, but they did not determine, and seemingly their minds did not advert to the question, when does a cause of action upon the award arise? It may not be necessary definitely to decide that question now. It is clear that a cause of
For these reasons, we recommend that the judgment of the district court be reversed and a new trial granted.
By the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be reversed and a new trial granted.
Reversed.