Betts v. State ex rel. Jorgenson

• Decision Date: 21 January 1903
• Citation: 67 Neb. 202,93 N.W. 167
• Parties: BETTS v. STATE EX REL. JORGENSON.
• Court: Nebraska Supreme Court

67 Neb. 202

93 N.W. 167

BETTS

v.STATE EX REL. JORGENSON.

Supreme Court of Nebraska.

Jan. 21, 1903.

Syllabus by the Court.

1. A respondent in mandamus proceedings, against whom a writ has been issued, and who has performed its commands, after the allowance of a supersedeas, and before his motion for a new trial has been disposed of, is not entitled to a review in this court of the question whether the writ should have originally been granted, especially where the judgment complained of provides for his reimbursement for costs, and where his official term has meanwhile expired.

Commissioners' opinion. Department No. 1. Error to district court, Cass county; Jessen, Judge.

Action by the state, on the relation of Peter Jorgenson, against William Betts, director of school district No. 94. Judgment for plaintiff, and defendant brings error. Dismissed.H. D. Travis, for plaintiff in error.

S. M. Chapman and A. M. Russell, for defendant in error.

LOBINGIER, C.

This was an application for a peremptory writ of mandamus to compel the respondent, as director of school district No. 94, Cass county, to examine and approve the bond of the relator as treasurer of said district. The alternative writ recited that the relator, “within the time required by law, duly executed and presented to the school board of said district * * * a good and sufficient undertaking, as required by law, in compliance and in conformity with the laws of the state,” and that respondent “refused to examine and approve said undertaking.” The return to the writ, which was in the form of an ordinary answer, was, in effect, a general denial, coupled with certain admissions. Upon a hearing the court found generally in the relator's favor, and specifically “that on October 27, 1900, relator tendered to the respondent a valid bond, which the respondent then and there refused to approve.” A peremptory writ was thereupon awarded, and the judgment contained the following clause: “It is further considered by the court that the respondent is adjudged to pay all the costs of this action. When paid into court by respondent, shall be repaid to the respondent by the said school district, No. 94; and said district is directed to so proceed as soon as said costs are paid into court by respondent and supersedeas fixed at $100.00.” After a motion for a new trial had been overruled, but without executing a supersedeas bond, the respondent brought the case here on error. His principal contentions are that the bond was never delivered to him for filing, nor its approval demanded, and that the sureties thereon are not shown to have been freeholders, as required by section 9 of chapter 10 of the Compiled Statutes; and he relies upon Woodward v. State, 58 Neb. 598, 79 N. W. 164. The trial court evidently took the view that the demand for approval was rendered unnecessary by the conduct of respondent; that the case was governed by State v. Baushausen, 49 Neb. 561, 68 N. W. 950; and that the recitals of the alternative writ were sufficient, in the absence of a motion for a more specific statement, to show the presentation of a bond with all the requisites, including the signatures of qualified sureties. We do not deem it necessary or advisable to enter upon a discussion of these questions, or to determine which of these diverse views is correct; for, in our opinion, the case must be disposed of on other grounds. A few days after the entry of the judgment, and long before the motion for a new trial had been disposed of, the respondent filed with the clerk of the district court the following paper: “Comes now the respondent, and, because an execution has been issued against him in said cause here, now, to save further costs, pays into court under protest the amount of the judgment for said costs taxed at $65.98, and shows to the court that he has approved the bond as ordered by the court in above cause, all under protest, and at all times excepting to the order of said court in the premises. January 14, 1901. William Betts, by H. D. Travis, His Atty.” It is also stated in the brief of relator, and not denied in that of respondent, that the school district “has repaid respondent the costs adjudged against him, and respondent received and accepted the same.” It is true that this fact does not appear in the record, but it does appear, as we have seen, that this action was required of the district as one of the conditions of the judgment sought to be reversed, and no one is here on behalf of the district complaining of this order. Such being the facts, the case falls within the rule announced as follows in School Dist. of San Diego Co. v. Board of Sup'rs of San Diego Co., 97 Cal. 438, 32 Pac. 517, where the respondents, after resisting an application for mandamus to compel them to levy a tax, complied with the commands of the writ, and then took an appeal: “The defendant voluntarily complied with the mandate of the court, and the judgment was thereupon satisfied, and its force exhausted. After it had thus been satisfied, there was nothing in the judgment which the court had rendered of which the defendant could complain, or about which it could say that it was aggrieved. A reversal of the judgment would not of itself set aside the levy of the tax which had been made, nor did the appellant, by its compliance with the judgment, lose any property or rights of which restitution could be made in case of a reversal. Code Civ. Proc. § 957. The proceeding was for the purpose of compelling the defendant to perform an official duty, and not one in which it had any personal rights to be affected.” See, to the same effect, Leet v. Board (Cal.) 47 Pac. 595. Under similar facts it was observed in State v. Napton, 10 Mont. 369, 25 Pac. 1045: “A judgment of any kind from this court would present a peculiar result. An affirmance would be to direct the district court to issue a writ, which that court has already issued, and which has been obeyed. A reversal would be to say to the lower court, ‘You may not order the clerk to do that which he has already performed.’ It is apparent that there is no controversy before us. The case is fictitious.” It is true that the respondent declares that he approved the bond under protest, but he failed to make his protest effective, as he might have done by taking advantage of the supersedeas which the court has a right to grant (Cooperrider v. State 46 Neb. 84, 64 N. W. 372;Insurance Co. v. Dutcher, 48 Neb. 762, 67 N. W. 766), and which he might have perfected by depositing or giving a bond for a sum about one-half more than that which he claims to have paid into court. Moreover, his payment of costs, even if he has not been reimbursed, will not alone afford such a subject of controversy as an appellate court will consider. State v. Meacham, 17...