51 Neb. 857 | Neb. | 1897
Thompson sued the school district in the county court, recovered judgment, and the school district prosecuted error to the district court, where the judgment of the county court was reversed and the cause reserved for trial. Thereupon Thompson filed an amended petition. A general demurrer to this petition was overruled, and the school district electing to stand on its demurrer, judgment was entered for the plaintiff. This judgment the school district seeks to reverse by this proceeding.
The amended petition alleges that on the 22d of April, 1889, the plaintiff filed with the clerk.of the village of Belvidere, in Thayer county, his petition signed by thirty freeholders, residents of said village, wherein he prayed for license to sell malt, spirituous, and vinous liquors in. said village; that"on the 29th of April he gave bond, and on the 5th of May paid to said village the sum of $500 for said license; that on the 29th of April a license was issued; that on the 5th of May the treasurer of said village “paid to the treasurer of this defendant the amount of money by this plaintiff paid into said treasury of Belvidere for the license heretofore mentioned;” that on the 19th of September the district court issued a mandamus to the village board, requiring it to fix a time for hearing
It is the settled law of this state that where an applicant for a license to sell liquor has paid the license fee and the license is afterwards canceled without fault or act of forfeiture by the licensee, l e may recover back a proportionate part of the license fee for the period during which he is not permitted to enjoy the license. (State v. Johnson, 12 Neb,, 470; Lydick v. Korner, 15 Neb., 500; State v. Weber, 20 Neb., 467; Chamberlain v. City of Tecumseh, 43 Neb., 221.) The general question of the right of the plaintiff to a repayment of his money is, therefore, no longer open to question. May he recover it from the school district under the facts of this particular case? One reason alleged for refusing such recovery is that it nowhere appears from the petition that the defendant school district comprises territory within the former corporate limits of Belvidere. We do not regard this as a material averment, because it is pleaded that the treasurer of Belvidere paid the money over to this school district. This averment traces the money to the defendant, and it is immaterial whether or not it rightly received it.
Another objection urged against the petition is that it discloses no privity between the parties. But in spite
Affirmed.