106 Neb. 355 | Neb. | 1921
The plaintiff,' Fremont Scott, filed a claim against Scotts Bluff county with the board of county commissioners for $1,681.50 for 1,123 days’ services as jailer at $1.50 a day in caring for prisoners confined in the county jail. From an order refusing to alloAV his claim he appealed to the district court, Avhere the case Avas tried' to the court, a jury being Avaived, and judgment Avas entered for the defendant, and Scott appealed to this court, Avhere the judgment Avag reversed and the case remanded for further proceedings.
On a retrial to a jury before Westover, Judge, sitting for Hobart, Judge, the court directed a verdict for the plaintiff in the snm of $1,961.50, and from judgment thereon this appeal was taken.
September 30, 1913, by a resolution duly adopted, the board of ■ county commissioners employed the plaintiff as “janitor for courthouse, salary $50 per month,” and the next day, October 1, 1913, the sheriff duly appointed him “deputy sheriff to act as jailer and to do other work pertaining to the office of sheriff.” October 1, 1913, he duly qualified as deputy sheriff and jailer and entered upon the discharge of his duty as jailer on the 7th, the bond reciting that “Fremont Scott has been appointed deputy sheriff and jailer in and for Scotts Bluff county, .Nebraska.”
1. The defendant does not seriously contend that the services were not performed by the plaintiff as he claims, but it is said that by a contract Avitli the board of county commissioners he Avas to act as janitor and jailer at $50 a month, that the evidence on the second trial differs from that on the first, and that the rule, the law of the case, does not apply.
•We think that the evidence avús substantially the same us that introduced on the first trial and that the rule, the Iuav of 'the case, applies. Roper v. Milbourn, 100 Neb: 739.
2. It is provided by section 5738, Rev. St. 1913, that “The sheriff may appoint such number of deputies as he sees fit.” It is provided by section 3511 that “The jailer or keeper of the jail shall, unless the sheriff elect to act as jailer in person, be a deputy appointed by the sheriff, and such jailer shall take the necessary oath before entering upon the duties of his office; provided, the sheriff shall in all cases be liable for the negligence and misconduct of the jailer, as of other deputies.” .And by section 2111: “Where there are prisoners confined in the county jail, one dollar and fifty cents per day shall be alloAved the sheriff as jailer.”
Under the holding in Dunkel v. Hall County, 89 Neb. 585, Ave think the plaintiff is' entitled to recover.
3. It is clear that the plaintiff Avas duly appointed and qualified as deputy sheriff and acted as jailer, performing the duties claimed by him. It is equally clear that, for the
The judgment of the district court is
Affirmed.