80 Neb. 628 | Neb. | 1908
The plaintiff asks a writ of mandamus commanding the defendants, three of whom are the county commissioners of Dawes county, and the fourth, the clerk of said county, to revise their estimates and levy for the year 1904, and to include in their estimates and levy of taxes an amount sufficient to pay the claims of the relator against the county, together with interest thereon, not exceeding in the aggregate, the amount limited by law for such estimates and levy. A demurrer was interposed to this petition and submitted to the district court for Dawes-county on Apfil 24,1905, and was by the court held under advisement until January 10, 1907, when the decision of the judge presiding at the hearing was, at his request, announced by the Honorable W. H. Westover, also a judge of that court, and judgment was entered dismissing the petition. Plaintiff has appealed.
It is shown in the petition, and admitted by the demurrer, that during the years 1892 and 1893 the county of Dawes became indebted to various persons on account of salaries and office expenses of county officers, witness fees, court costs in county and state cases, supplies furnished to the county, taking care of paupers, repairing county property, and the like. There is no claim that this indebtedness was not honestly incurred for actual services rendered, and supplies furnished; indeed, it is freely admitted by the county that the claims were all legally incurred, and constitute a moral obligation against the county. At various sessions of the board of county commissioners during the years 1892 and 1893 all the claims referred to in the petition were presented to the county board, examined
In support of tlie judgment of the district court the defendant makes two contentions: First, that there has never been any valid allowance of the claims held by the relator, because Avlien said claims were allowed there were no unexpended funds against which warrants might be drawn; and, second, that the relator’s cause of action is barred by the statutes of limitations. If the allowance of these claims made by the county board in 1892 and 1893 was valid, then they stand as a liability against the county in the nature of a judgment. It was held in Taylor v. Davey, 55 Neb. 153: “An order of a county board allowing or rejecting claims against the county has the force and effect of a judgment, and is conclusive unless vacated or reversed on appeal.” This being so, the duty of the county to provide for the payment of a judgment is a continuing duty against which the statute of limitations could not operate. The material question then is: Did the county board of. Dawes county have jurisdiction to audit and allow these claims at the time they were audited and allowed;
We recommend a reversal of the judgment of the district court and remanding the cause, with directions to that court to issue the writ as prayed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded to the district court, with directions to issue the writ as prayed.
Reversed.