66 Neb. 198 | Neb. | 1902
This is a proceeding in error brought by Charles Wes' ton, auditor of public accounts, and George W. Marsh, secretary of state, on behalf of the state, from an order made by the district court for Lancaster county requiring the auditor and secretary of state to allow and approve a claim and draw a warrant in favor of defendant in error, Falk, for the sum of $2,916.83. The defendant in error presented to the auditor a claim against the state for the sum of $8,750.50 for supplies alleged to have been furnished the state for the use of the inmates of the asylum for the insane located at Hastings. A hearing was had on this claim before the auditor, at which evidence was taken. The auditor thereupon, and by recommendation of the state board of supplies, allowed the claim in the sum of '$5,833.67, and disallowed it in the sum of $2,916.83. The auditor issued a warrant for the amount allowed and the defendant in error accepted the warrant and then took an appeal from the decision of the auditor to the district court for Lancaster county, and upon hearing in that court a judgment was entered directing the auditor and secretary of state to allow and approve the remainder of the claim, $2,916.83, and to draw a warrant therefor. From this judgment of the district court the state prosecutes error to this court.
The question is, can the claimant- accept a warrant for the amount allowed him by the decision of the auditor and
The judgment of the district court is reversed, and the cause remanded, with instructions to dismiss the appeal.
REVERSED AND REMANDED.
The following opinion on motion for a rehearing' was filed January 21,1903. Rehearing denied.
' Upon the motion for a rehearing in this case, it is urged that the claimant did not waive his right of appeal by accepting the warrant issued by the auditor, because it was not possible that the claimant could have recovered less on his appeal than had already been allowed by the auditor; and in his brief upon the motion, special attention is called to the case of Tyler v. Shea, 61 N. W. Rep. [N. Dak.], 468. That case seems to state the rule generally adopted by the' authorities. In the opinion it is said: “The rule is well settled that one can not accept or secure a benefit under a judgment, and then appeal from it, when the effect of his appeal may be to annul the judgment, unless his right to the benefit is absolute, and can not possibly be affected by the reversal of the judgment. * * * It is the possibility that his appeal may lead to a result showing that he was not entitled to what he has received under the judgment appealed from that defeats his right to appeal. Where there is no such possibility,, the right to appeal is unim
The argument that appellant in this case did not, by accepting the warrant, obtain any benefit under the decision of the auditor, Avhich on his appeal might be taken from him, is based upon the following propositions:
1. The board of public lands and buildings recommended an allowance of two-thirds of the amount claimed, and the auditor and secretary of state adopted the recommendation, and “allowed the claim at 66|- per cent, or $5,833.-67,” and the auditor notified the claimant to appear and receive said amount of money. It is insisted that this is an admission by the auditor that the sum named is due from the state to the defendant on his claim, and that the state desired to pay him said sum thus due. But we do not see how these circumstances can have the effect claimed for them. It Avas the duty of the auditor to make a decision upon the claim, and the recommendation of the board of public lands and buildings was not binding upon him in making his decision. So far as these acts of the board and of the auditor were within the authority conferred upon them by the statute, they were steps taken in the hearing and determination of the matter before them. It was necessary to reach a conclusion as to the amount due the claimant, and when that was done, a decision based upon such conclusion was the necessary result; but as shoAvn in the former opinion herein, neither the conclusion, nor the decision based thereon, are binding upon the court to which the appeal was taken. It was'the duty of the court to investigate the claim de novo, and determine the amount due the claimant, without regard to the finding and decision of the auditor.
2. After the appeal had been taken to the district court for Lancaster county from the decision of the auditor, issues were made up in the district court, and in the answer filed on behalf of the state it Avas admitted “that all
3. This case was heard in the district court upon a demurrer to the reply which the claimant filed to the answer of the staM. This demurrer to the reply was overruled, and from that ruling error was prosecuted to this .court. The reply alleged:
“At this time the transcript of appeal had been made out by the said auditor as to the disallowance of the $2,916.83, and when said auditor asked this plaintiff to sign the voucher for the $5,833.67, he refused to accept the warrant for said amount, and sign the voucher therefor, until assured by said auditor that his doing so would in no manner affect his right of appeal as to the disallowance of the $2,916.83, and after the auditor had scratched out in the regular form of voucher the word Tull’ and plaintiff had written therein ‘said amount received by me under protest,’ meaning thereby that it was an amount simply to apply on plaintiff’s claim, and it being so understood by both said auditor and this plaintiff, and relying on said auditor’s assurance that the transaction would in no manner affect plaintiff’s right under his appeal in the disal-lowance of the $2,916.83, plaintiff signed said voucher on the 26th day of September, 1901, and took said warrant to*206 apply on his said account, and had it not been for said understanding, that the taking of said warrant, and the signing of said voucher was to be without any prejudice to plaintiff’s right to this appeal, he would not have accepted same and would not have signed said voucher, and this, said auditor well knew at the time.”
And these facts being admitted by the demurrer, it is insisted, accepting the warrant under such circumstances would not waive the right of appeal. So far as this claim is based upon' the proposition that these representations on the part of the auditor would fix the amount due claimant, so that the amount allowed by the auditor could not, in any event, be diminished by the adjudication of the district court, Ave think it is fully ansAvered by the foregoing-suggestions.
4. It is contended that the foregoing facts stated in the reply, and admitted by the demurrer, amount to an “agreement at the time the money was paid by the auditor to Falk, that it should in no manner affect his right to the appeal as to the $2,916.83,” and “that even Avere it the laAV, that without such an agreement Falk would Lave Avaived Ms right to’ appeal, such waiver is a mere personal privilege to the state, and by the agreement Avas clearly Avaived.” In other Avords, though the claimant, by his action in accepting the Avarrant, Avaived his right of appeal, the state, by its auditor, agreed not to insist upon such Avaiver, and is now bound by that agreement. And the case of Minneapolis Harvester Works v. Hedges, 11 Nebr., 46, 48, is cited, in which it was held that the-right to object to an attempted appeal by a defendant in justice court who has made no appearance in the case before the justice, may be waived by the plaintiff, and is so waived by agreement betAveen the plaintiff and defendant, made after the judgment by default, to the effect that the case shall be docketed in the district court and there tried. The court said: “This is a mere personal privilege, and may be waived. The court has jurisdiction of the subject-matter, and the parties may Avithout objection appear and litigate the mat-
The motion for rehearing is overruled.
Cobbey, Annotated Statutes, sec. 10887.