36 Neb. 469 | Neb. | 1893
The defendant is the clerk of the district court of Adams county, and this is an application for a mandamus to compel him to pay over certain moneys in his hands claimed to be due the relator. He has demurred to the petition upon two grounds: First, that the action is improperly brought in the name of the state, and second, that the facts stated in the petition are not sufficient to constitute a cause of action. The petition is as follows:
“Comes now the relator, Mark Levy, and respectfully represents unto this honorable court that on May 24, 1888, Loeb and Emile Lindner commenced in the district court of Adams county, Nebraska, by the filing of their petition, an action for partition of divers and sundry descriptions of real estate mentioned in their said petition; that Rosa Hirsch, Harry Hirsch, Benjamin Hirsch, and Jacob Hirsch were defendants in said action; that Rosa Hirsch was the wife, and the said Harry, Benjamin, and Jacob Hirsch were the only heirs and children of Samuel Hirsch, deceased, who died intestate in the city of Hastings, Adams county, Nebraska, on the 18th day of April, 1888; that on the 16th day of June, 1888, John M. Ragan was duly appointed by said court as guardian ad litem for the said Harry, Benjamin, and Jacob Hirsch, the minor heirs of said Samuel Hirsch, deceased; that on the 18th day of June, 1888, said action came on to be heard upon the said petition and the answer by Rosa Hirsch in her own proper person, and the answer of John M. Ragan, the duly appointed guardian ad litem of said minors, and the evidence presented in open court, and the same was submitted to said court. On consideration whereof the court found that the plaintiff Abraham Loeb was the owner in fee-simple of an undivided one-half (½) part and interest to the real estate described in said petition, and that said Harry, Benjamin, and Jacob Hirsch were the children of Samuel Hirsch, late
“It was further ordered and adjudged in said district court that J. H. Graham, William M. Lowman, and J. D, Croswaith be, and they were thereby, appointed referees to make partition of said real estate into the requisite number of.shares, and report the same at that term of court if possible, and if not, that they make due report at the following term of said court.
“That on the 19th day of June, 1888, a commission authorizing and requiring the referees to carry into effect the terms and requirements of said decree was issued out of the district court of Adams county, Nebraska, authorizing-and commanding-them to make partition of said real estate as follows:
“ To Abraham Loeb one-half (½) in value of said real estate; to Harry, Benjamin, and Jacob Hirsch, severally, one-sixth (⅙) each in value of said real estate, in manner as provided by law.
“ That on said day said referees took the oath prescribed by law, as fully appears upon said commission; that on the 20th day of June, 1888, said referees, having first took the oath required by law as hereinbefore related, carefully examined the condition of all the real estate described in said petition with a view to making partition thereof among the persons hereinbefore named, and said referees reported and found that the partition of said premises could not be made without great prejudice to the owners thereof, for the rea
“ That thereupon said referees proceeded to the procurement of certificates to all liens upon the real estate described in said petition and caused all of the same to be duly advertised according to the terms of the decree of the said court; and said referees made report of all of their doings at stated periods; that all of the reports of sales made by
“That in said action in said district court of Adams county, after the sale and disposition of said real estate by the referees as hereinbefore mentioned, said cause came on to be finally heard on the application of the parties to said action for the purpose of having the proceeds of the sales of the property distributed; it was found by said court that Abraham Loeb was entitled to a one-half interest in the moneys and note in the hands of said referees appointed in said case, the proceeds of said sales; that Harry, Benjamin, and Jacob Hirsch, the heirs of Samuel Hirsch, deceased, were entitled to an undivided one-half intei’est, that is, one-sixth interest each, in and to the moneys and notes in the hands of said referees, the proceeds of the sales of real estate in said partition suit; that at said time the reports of the referees were correct; that the referees appointed in said action distributed the proceeds arising from the partition sale of lands in said action as follows: One-half of said proceeds to Abraham Loeb, and the remaining one-half, share and share alike, to ITarry Hirsch and Benjamin Hirsch and Jacob Hirsch; that the supplemental and final report of the referees be and the same is confirmed.
“That afterwards, to-wit, on the 24th day of December, 1890, said cause came on to be heard on the petition and showing filed by said referee, William M. Lowman, and from the facts stated therein and the report of said referee and the evidence produced in court the said court found that under the previous order entered in said action said referee had paid to Abraham Loeb $475.15; that there was then in the hands of said referee the sum of $475.15 in cash, and the further sum of $2,076.48 in notes taken as part payment for the sale of the real, estate described in the petition for partition; said court then and there further found that said referees had complied fully and completely with the orders of said court appointing them and that said referee, William M. Lowman, should be discharged ; that the report of said referees had been theretofore made in said action be by said court confirmed. The court therein ordered said William M. Lowman, referee, to pay the money, notes, and property then in his possession to the clerk of the said court, this respondent; it was then and there adjudged by said court that said William M. Lowman should pay to the clerk of said court, this respondent, the said sum of money and notes found to be in his hands for the use and benefit of the persons and parties entitled thereto, and it was further ordered and adjudged by the said court that the said William M. Lowman be and he was thereby discharged from further liability. That on the 19th day of December, 1890, said William M.
“Wherefore your relator respectfully prays this honorable court that in the exercise of its original jurisdiction the court may grant a peremptory writ of mandamus, commanding J. H. Spicer, clerk of the district court of Adams county, Nebraska, the respondent herein, immediately upon the receipt of said writ, to deliver and pay over to your relator all notes, moneys, and property adjudged and decreed to the said Abraham Loeb in the partition suit mentioned in this information as having been assigned to your relator, and your relator prays for such other order and general relief as may be lawfully required in the securement of his rights in this proceeding.”
If the facts stated in the petition are true, the real estate in question has been sold under proceedings in partition, the sale confirmed, deeds made to the purchasers, and the proceeds of said sales are now in the hands of the defendant. This court, therefore, in this proceeding has nothing to do with the partition case. For the purpose of this demurrer the proceedings in that case are supposed to be regular and unobjectionable. The right of the relator to bring an action by mandamus in the name of the state has been recognized from the earliest period of our history as a state, and may be regarded as a settled rule which, if changed, it should be done by the legislature. The first point of the demurrer, therefore, is not well taken.
Demurrer overruled.