Rube v. Cedar County

35 Neb. 896 | Neb. | 1892

Post, J.

This is a petition in error from the district court of Cedar county, and the material facts as they appear from the record are as follows : The plaintiff in error recovered judgment in the district court of Celar county for costs in an action of trespass against one William Sullivan. Subsequently the latter filed a claim against the county for the amount of the costs adjudged against him, $363.69, and for attorneys’ fees paid in said action, $334. The county board allowed the sum of $588 on said bill, from which order the plaintiff in error, an alleged taxpayer of said county, appealed to the district court. In the district court a motion was made by Sullivan to dismiss the appeal on two grounds. First, because the appellant, plaintiff in error, was not a taxpayer of said county; and second, because no sufficient undertaking had been given. The first ground assigned is not supported by any evidence whatever. The notice of appeal, which is in due form, describes the appellant as a resident elector and taxpayer of said county. This allegation is sufficient to give the district court jurisdiction. There is no provision of statute for making up of issues in the district court in cases appealed from the county boards. It is customary to try them without pleadings, and an appeal should not be dismissed upon the bare assertion of the adverse party that the appellant is not a taxpayer. The undertaking is as follows:

“Whereas on the 16 th day of April, 1890, the board of county commissioners of said county allowed to said Wm. Sullivan against said county an order of $588 on the general fund before said board of commissioners in above cause of action the sum of $588 costs and attorneys’ fees, and the said Ferdinand Rube intends to appeal said cause to the district court of Cedar county. Now, whereas I, Ferdinand Rube, do promise and undertake to the said county of Cedar in the sum of one hundred dollars, that the said Ferdinand Rube will faithfully-such appeal and pay all costs that may be adjudged against him, and shall prosecute his appeal to effect and without unnecessary delay, and that said appellant will, if judgment be adjudged against him on appeal, .will satisfy all costs adjudged' against him. Albert Erdenberger.

“B. B. Boyd,

“Surety approved by me this 25th day of April, 1890.

“[seal.] Frans Nelson,

“County Clerk.”

This undertaking, although informal, is not void. The proceedings, while irregular, were sufficient to give the district court jurisdiction. The plaintiff in error appears to have acted in good faith aiid should have been given an opportunity to file a new and sufficient bond. The district court erred in dismissing the appeal and the judgment is

Reversed.

The other judges concur.