Ayres v. Thurston Cnty.

• Decision Date: 04 December 1901
• Citation: 63 Neb. 96,88 N.W. 178
• Parties: AYRES v. THURSTON COUNTY.
• Court: Nebraska Supreme Court

63 Neb. 96

88 N.W. 178

AYRES

v.THURSTON COUNTY.¹

Supreme Court of Nebraska.

Dec. 4, 1901.

Syllabus by the Court.

1. Where a public corporation, other than a sovereign state, incurs a legal liability, it may, unless otherwise provided by statute, be sued, and a money judgment recovered against it.

2. The existence of a lawful claim implies, ordinarily, the right to enforce such claim by action.

3. The provisions of our statute (section 20, art. 1, c. 18, Comp. St. 1901) declaring that counties may be sued either in law or in equity is express authority to enforce by action any claim of which the county board has not exclusive original cognizance.

4. County warrants are not within the class of claims which must, in the first instance, be presented to the county board for examination and adjustment.

5. An action to recover a money judgment upon a county warrant may be maintained when the money for the payment of such warrant has been collected, and wrongfully applied by the county authorities to the payment of other claims against the county.

Error to district court, Thurston county; Graves, Judge.

Action by Marion C. Ayres against the county of Thurston. Judgment for defendant. Plaintiff brings error. Reversed.R. E. Evans, for plaintiff in error.

Hiram Chase, for defendant in error.

SULLIVAN, J.

This action was brought to recover a money judgment upon general fund warrants issued by the county of Thurston to Marion O. Ayres. The petition charges that the warrants were duly issued; that they are valid; that they were presented for registration, and registered according to law; that since their issuance and registration from three to seven years have elapsed; that the funds against which they were drawn, and out of which they should have been paid, came long since into the hands of the county treasurer, and were by the county authorities wrongfully applied to the payment of other claims against the county. It is also alleged that the county has refused either to pay the warrants or to make any provision for their payment. The defendant demurred to the petition on the ground that the facts pleaded were insufficient to constitute a cause of action. The court sustained the demurrer, and, the plaintiff failing to amend, judgment on the merits was given against him. This decision cannot be sustained. It is grounded on the erroneous assumption that an ordinary action can, under no circumstances, be maintained upon a warrant issued by a county or other political subdivision of the state. The general current of authority is certainly the other way. “Where a county refuses,” says Valentine, J., in Commissioners v. Brewer, 9 Kan. 310, “to pay a claim against it, there seems to be no good reason why it may not be sued as well as any other corporation, or as any individual, under like circumstances.” The doctrine of the cases seems to be that, where a public corporation other than a sovereign state incurs a legal liability, it may be sued, and judgment recovered against it. Gillett v. Commissioners, 18 Kan. 410; Armstrong v. Tama Co., 34 Iowa, 309;Savage v. Crawford Co., 10 Wis. 49;People v. Clark Co., 50 Ill. 213;International Bank v. Franklin Co., 65 Mo. 105, 27 Am. Rep. 261;Heffleman v. Pennington Co., 3 S. D. 162, 52 N. W. 851;Hockaday v. Commissioners, 1 Colo. App. 362, 29 Pac. 287. The existence of a lawful claim implies, ordinarily, the right to...