Alter v. State ex rel. Brothers
| Decision Date | 19 June 1901 |
| Docket Number | 11,886 |
| Parties | D. M. ALTER ET AL. v. STATE OF NEBRASKA, EX REL. KOUNTZE BROTHERS |
| Court | Nebraska Supreme Court |
ERROR from the district court for Adams county. Tried below before ADAMS, J. Reversed.
REVERSED.
Harrison & Pearne, W. P. McCreary and W. F. Button, for plaintiffs in error.
John M Ragan, Reavis & Reavis, contra.
Argued orally by W. P. McCreary and T. O. C. Harrison, for plaintiffs; by John M. Ragan, contra.
SEDGWICK C. OLDHAM and POUND, CC., concur.
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 for Adams county the relators obtained a judgment against school district No. 34 of Adams county, Nebraska, and school district No. 21 of Hall county, Nebraska, for the sum of $ 1,258.98 and costs, with interest at ten 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 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 schoolhouse 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 the 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 can not 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 statutes a warrant of attorney is necessary to enter a judgment by confession against a corporation. Howell v. Gilt Edge Mfg. Co., 32 Neb. 627, 49 N.W. 704; Chicago, B. & Q. R. Co. v. Hitchcock County, 60 Neb. 722, 84 N.W. 97, and Fogg v. Ellis, 61 Neb. 829, 86 N.W. 494, decided at the present term of this court. 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 District, 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 United States v. Township of Oswego, 28 F. 55, it was held by Judge Brewer: which we think is the correct rule. Certainly a peremptory writ of mandamus will not be allowed to compel the levy of a tax to pay a dormant judgment. State v. School District, supra. But it is contended that upon the facts admitted by the defendant officers of Adams county, or established by the proof, the judgment in question was not dormant. The allegations so admitted by the officers of Adams county are: "That the judgment so obtained against the two districts aforesaid by its terms and the stipulation of the parties in open court, was made to run against all of...
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