Arapahoe v. Albee

• Decision Date: 03 July 1888
• Citation: 38 N.W. 737,24 Neb. 242
• Parties: VILLAGE OF ARAPAHOE v. ALBEE.
• Court: Nebraska Supreme Court

24 Neb. 242

38 N.W. 737

VILLAGE OF ARAPAHOE

v.ALBEE.

Supreme Court of Nebraska.

July 3, 1888.

Syllabus by the Court.

The statute of limitations will run against a warrant issued by the proper authorities of a village. Such warrant will be barred in five years from the time it becomes due. Brewer v. Otoe Co., 1 Neb. 373, is based upon special legislation relating to county warrants.

On the facts stated, held, that the village of Arapahoe was a de facto corporation from the year 1873 to 1879.

Error to district court, Furnas county.

Action by Charles S. Albee against the village of Arapahoe. Judgment for plaintiff. Defendant brings error.John Dawson, for plaintiff in error.

W. S. Morlan, for defendant in error.

MAXWELL, J.

The plaintiff brought an action against the defendant, and alleges in his petition that the defendant is duly incorporated as a village under the general laws of the state of Nebraska; that on the 27th day of December, 1873, said defendant being justly indebted to Acres, Blackmare & Co. in the sum of $69.35, which said indebtedness was at that time due and unpaid, the board of trustees, being then in regular session as the board of trustees of said village, did order and allow the said claim and demand of said Acres, Blackmare & Co., and did adjudge that the said Acres, Blackmare & Co. be paid, on account thereof, the sum of $69.35, and thereupon, because of the promises, did draw and issue to said Acres, Blackmare & Co. the certain warrant of said village numbered 1, duly signed by E. B. Murphy, who was the chairman of said board of trustees, and countersigned by C. F. Calwell, clerk of said village, and of said board, and attested by the seal of said village, and directed to the treasurer thereof; and which commands the treasurer to pay to Acres, Blackmare & Co. or bearer the sum of $69.35 out of the general fund of said village. On the 10th day of March, 1874, said warrant was duly presented for payment to, and payment thereof duly demanded from, the treasurer of said village, and said treasurer thereupon indorsed upon said warrant the following words: “Registered for payment, March 10, 1874, not paid for want of funds, and never has been any funds to pay the same. G. W. CALVIN, Treasurer.” And then and there said treasurer, for want of funds, refused to pay said warrant, or any part thereof. Said warrant was in words and figures following, to-wit: “$69.35. STATE OF NEBRASKA, TOWN OF ARAPAHOE, December 27, 1873. Treasurer of the Town of Arapahoe: Pay Acres, Blackmare & Co., or bearer, $69.35, and charge to account of general fund. By order of the town council. No. 1. C. F. CALWELL, Clerk. E. B. MURPHY, Chairman Board of Trustees. Registered for payment, March 10, 1873. G. W. CALVIN, Treasurer.” Subsequently, but before the commencement of this action, said warrant was by said Acres, Blackmare & Co., for a valuable consideration, transferred and delivered to the plaintiff, who is now the lawful holder and owner thereof; but that no part of said warrant has been paid, nor is there now, nor has there been at any time, any funds or moneys in the treasury of said village for application to the payment of said warrant; and said defendant has at all times neglected, and still neglects and refuses, by levy of taxes or otherwise, to provide for the payment of the same, or any part thereof; and there is now due the plaintiff thereon the sum of $69.35, and 10 per cent. interest from the 27th day of December, 1873; for which amount plaintiff asks judgment.

There are eleven counts in the petition upon causes of action similar to that above set forth. The village filed an answer in which-- First. It denies that it was incorporated at the time said indebtedness was incurred. Second. Interposes a plea of the statute of limitations. Third. That certain warrants described in specified counts of the petition were issued to aid in constructing a water grist-mill in said village, without being authorized by a vote of the electors thereof. Fourth. That a portion of the indebtedness (describing it) was incurred for stationery and letter-heads for the use of the people of the village. There is a stipulation of facts set out in the record, which need not be copied. On the trial of the cause, the court found the issues against the village in all matters, except as to the warrants issued for the water gristmill, and rendered judgment accordingly. Both parties prosecute error to this court. The agreed statement of facts shows that all the warrants were issued in 1873 and 1874, and in the latter year were presented to the treasurer of the village...