144 P. 793 | Okla. | 1914
This was an action by Grant county, through its board of county commissioners and county attorney, to recover certain fees it was alleged had been paid without authority of law to George D. Walker, as sheriff. Defendant answered, denying the allegation in plaintiff's petition, and alleging that the fees in question were proper charges against the county and were lawfully paid, and further alleging that all the items and sums referred to in plaintiff's petition had been included in the sheriff's regular quarterly reports and accounts; that such quarterly reports had been duly filed with, and audited by, the county clerk and duly approved and allowed by the board of county commissioners in regular session; and that, no appeal having been taken from the order of the board, the county was estopped from maintaining this action. The cause was tried by the court upon an agreed statement of facts, and upon the pleadings and agreed statement of facts the court gave judgment against defendant, George D. Walker, and his bondsmen for the sum of $536.22 and costs. From this judgment the defendant, George D. Walker, appeals upon the following specifications of error, to wit: First, said court erred in overruling the demurrer to the petition; second, said court erred in sustaining the demurrer of the plaintiff to the answer of defendant; third, said court erred in rendering judgment in said action against said defendant and in favor of said plaintiff.
No briefs were filed in this case, but by order of the court the parties were permitted to substitute the briefs in cause No. 3895, E. P. Privett et al. v. Board of CountyCommissioners, post, and the briefs in No. 3909, J. D.Orendorff et al. v. Board of County Commissioners, ante,
The only questions presented and argued in the substituted briefs which could by any means be made to apply to any of the questions involved in the case at bar are the questions: First, whether an action will lie for the recovery of fees paid to a county officer after claims for same have been audited and allowed *353
by the board of county commissioners and no appeal taken from such order; and, second, the question whether it is lawful for the county commissioners to pay county officers for services outside of the regular and ordinary duties of their office without some express constitutional or statutory authority. These questions, however, are not properly presented here, for the reason that it appears from the case-made that neither the original petition, answer, agreed statement of facts, nor journal entry of judgment was ever filed with the clerk of the district court. That is, the purported petition, answer, agreed statement of facts, and journal entry presented here bear no copy of filing marks nor other evidence that their originals were ever filed with the district clerk. It is true that the case-made and stipulation by the attorneys recite that it is a full, true, correct, and complete copy of the transcript of all the proceedings in said cause, including all the pleadings filed and proceedings had, together with all the evidence offered and introduced, all the orders and rulings made and exceptions allowed upon which the judgment and journal entry were made, and that the same is a full, true, complete, and correct case-made. The judge of the trial court also certifies to the same effect, which certificate is attested by the clerk of the district court. If this be true literally, then the originals of the purported petition, answer, stipulation of facts, and journal entry of judgment presented here were never filed in the district clerk's office, and therefore, underMobley v. C., R.I. P. Ry. Co., post, present nothing to this court for decision. However, it might not be amiss to say that in the cases of Zeigler v. Board of County Commissioners, ante,
The appeal is, therefore, dismissed.
By the Court: It is so ordered.
