Alter v. State ex rel. Kountze

• Decision Date: 19 June 1901
• Citation: 62 Neb. 239,86 N.W. 1080
• Parties: ALTER ET AL. v. STATE EX REL. KOUNTZE ET AL.
• Court: Nebraska Supreme Court

62 Neb. 239

86 N.W. 1080

ALTER ET AL.

v.STATE EX REL. KOUNTZE ET AL.

Supreme Court of Nebraska.

June 19, 1901.

Syllabus by the Court.

1. There being no evidence to support the findings and judgment as to a part of the defendants, the judgment is reversed as to them.

2. If suit is begun against a municipal corporation by filing petition and issuing and serving of summons, it is irregular to enter a judgment against defendant without first entering its default. But judgment, when so entered after answer day upon the written stipulation of defendant's attorney, will not be void when collaterally attacked.

3. Section 482 of the Code applies to judgments against municipal corporations; but proceedings by mandamus, if in good faith, to compel a levy and collection of taxes to pay the judgment, will be equivalent to issuing an execution on a judgment against an individual.

4. Whether levy and collection of taxes by the proper officers, and paying the same upon judgment, will prevent the same from becoming dormant, quære.

5. If no tax is levied, and no proceedings are begun to compel such levy, a judgment against a municipal corporation will become dormant in five years.

6. After a judgment against a municipal corporation has become dormant, the levy of a tax and payment of such judgment will not revive the same. The statutory method of revivor is exclusive.

Error to district court, Adams county; Adams, Judge.

Action by the state, on relation of Kountze Bros. and others, against D. M. Alter, chairman of the board of supervisors of Adams and Hall counties, and others, to procure a peremptory writ of mandamus to compel the collection of taxes to pay a judgment. From judgment in favor of plaintiffs, defendants bring error. Reversed.Harrison & Pearne, W. P. McCreary, and W. F. Button, for plaintiffs in error.

John M. Ragan, Reavis & Reavis, and A. H. Bowen, for defendants in error.

SEDGWICK, C.

This action was begun in the district court of Adams county to procure a peremptory writ of mandamus to compel the levy and collection of taxes to pay a judgment which it was alleged the relators had obtained against school district No. 34 of Adams county and school district No. 21 of Hall county. Upon trial in the district court there was a judgment awarding the peremptory writ as prayed. The action was against the chairman and supervisors, county clerk, and county treasurer of Adams county, and also the chairman and supervisors, county clerk, and treasurer of Hall county, and the defendants therein have brought the case here for review upon petition in error; the said officers of Hall county having united in a petition in error to reverse the judgment as against them, and the officers of Adams county having united in a separate petition in error to reverse the judgment as against them. It is alleged in the petition for the writ that at the June term, 1878, of the district court of Adams county, the relators obtained a judgment against school district No. 34 of Adams county, Neb., and school district No. 21 of Hall county, Neb., for the sum of $1,258.98 and costs, with interest at 10 per cent. per annum from that date; that both school districts were organized on the 12th day of April, 1873, and that permission was granted to these school districts, respectively, by the respective superintendents of public instruction of the two counties, to join with each other for school purposes, and that the bonds were issued jointly by the two districts in pursuance of authority of the legal voters of both districts, but the bonds ran in the name of school district No. 34 alone; that said judgment was pronounced equally against both districts, describing the territory in both of them. The petition then describes the territory in both districts, respectively, and alleges that “the said judgment, by its terms and the stipulation of the parties in open court, was made to run against all of the original territory comprised in both of the school districts herein mentioned.”

1. The defendant officers of Hall county insist that the decree, as against them, is not supported by the evidence. It will be observed that the petition for the writ shows that there were at the time of issuing the bonds in question two independent school districts,--No. 34 and No. 21,--and alleges that they have been authorized to unite in building a school house and issuing the bonds in payment therefor; and these and all other allegations of the relators tending to show that any territory of Hall county was included in district No. 34 at the time of the issuing of the bonds, or that school district No. 21 of Hall county was in any way connected with the issuing of bonds, or liable therefor, are denied by the defendant officers of Hall county; and there was no proof on the trial tending to support these allegations, except the record of the proceedings in the district court in the former suit against district No. 34, from which it appears that one Bowen, attorney at law, acted for district No. 34, and, as such attorney, stipulated that the judgment against that district should include and bind the territory of district No. 21, situated in Hall county. So that, even upon the theory of the relators, there is no foundation shown in the evidence offered in any way connecting any of the territory in district No. 21 of Hall county with district No. 34 of Adams county, and this judgment cannot be sustained as to the officers of Hall county.

2. In behalf of the officers of Adams county it is insisted that the alleged judgment upon the bonds is void because “it was entered upon confession of an attorney, and no warrant of attorney for making such confession was produced at the time.” This court has held that under our statute a warrant of attorney is necessary to enter a judgment by confession against a corporation. Howell v. Manufacturing Co., 32 Neb. 627, 49 N. W. 704;Chicago, B. & Q. R. Co. v. Hitchcock Co., 84 N. W. 97; and Fogg v. Ellis (decided at the present term of this court) 86 N. W. 494. But the judgment in question was not entered by confession. A petition was filed, summons regularly issued and served, and defendant was in default for answer. If there had been no stipulation between the parties, there still would have been no irregularity, except the omission to enter a formal default against the defendant. Such an irregularity would not render the judgment void. Likes v. Wildish, 27 Neb. 151, 42 N. W. 900;Smith v. Silvis, 8 Neb. 164.

3. It is also insisted that no execution was ever issued on said judgment, nor any other proceeding had to revive the same, and the judgment was, therefore, at the time of the commencement of these proceedings, dormant, under section 482 of the Code. The statute, no doubt, applies to judgments against municipal corporations, as well as other judgments. State v. School Dist., 25 Neb. 301, 41 N. W. 155. The statute makes no exception, and the court can make none, but our statute provides that no execution shall issue against municipal corporations; and the remedy by mandamus to compel a levy of taxes to pay the judgment against such corporations performs the office of an execution in ordinary cases. In U. S. v. Oswego Tp. (C. C.) ...