Bishop v. Huff
| Decision Date | 21 May 1908 |
| Docket Number | 15,206 |
| Parties | RICHARD BISHOP ET AL., APPELLANTS, v. IRA B. HUFF ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Harlan county: ED L. ADAMS JUDGE. Affirmed.
AFFIRMED.
C. M Miller and J. M. Mohney, for appellants.
John Everson and Gomer Thomas, contra.
FAWCETT C. CALKINS and ROOT, CC., concur.
Plaintiffs, nine in number, brought suit in the district court for Harlan county against "Ira B. Huff, George R. Greer, and Peter Nielsen, as the board of trustees of the village of East Oxford." In their petition plaintiffs allege that they are residents and taxpayers of said village of East Oxford, and that the suit was brought by them on their own behalf and on behalf of all other taxpayers similarly situated who might come in and contribute to the expense of the suit. In the third paragraph they allege that the board of trustees had audited and allowed a large number of claims or accounts against the village in large sums, the amount of which is unknown to the plaintiffs; that the village clerk had issued warrants therefor, which the treasurer had paid, all of which they say was illegal because the board of trustees had not complied with the law by first passing an ordinance known as the annual appropriation bill; that "the said board has entirely failed to pass the said annual appropriation bill, and, having proceeded to apply the moneys raised by taxation, license and other sources of income to the payment of said claims and accounts heretofore audited, allowed and paid, have made themselves liable as individuals for the payment of the same." The fourth paragraph of the petition alleges that the board had contracted a large number of accounts that were not necessary to be contracted, had used the money of the village for the purpose of constructing sidewalks, also for street crossings and grading the streets of the village, without having passed the annual appropriation bill, appropriating certain definite sums of money for the purposes for which the said sums had been allowed and paid; that no appropriation bill had been passed for sidewalks, street crossings, or for any other improvements, or to defray any other expense of the said village, "but that said board of trustees have audited, allowed, and paid for all expenses and improvements without having first appropriated any sum or sums whatever for the payment of the same, and without having called a special election at which any appropriation has been submitted to the legal voters of said village, and without having secured the assent of the electors of said village by petition signed by them appropriating money for any of the sums so audited, allowed and paid." There is a prayer for an accounting and injunction. It is clear that no injunction could issue for any of the matters set out in these two paragraphs of the petition, as all of the wrongs there complained of had already been committed, and, if the facts alleged create any liability against the defendants, it is a liability enforceable only in an action at law, and not by a suit in equity for an accounting.
Paragraph 5 of the petition alleges that at the last general election the question of abolishing the village was duly submitted to the electors, who voted in favor of abolishing the said corporation, but, notwithstanding the result of the election, the board of trustees is still continuing to act and planning to make further contracts. There is absolutely no evidence in the record before us to sustain the allegations of this paragraph.
Paragraph 6 is evidently the one upon which plaintiffs base their claim for relief by injunction. It reads as follows "Plaintiffs further represent that, unless the said defendants are restrained by injunction, they will proceed to contract further indebtedness against the said village, and will audit, allow and pay the same without having had the said annual bill aforesaid, and will thus wrongfully and illegally appropriate the money now in the treasury of the said village for the payment of such claims, and will also contract obligations against the said village that will have to be liquidated by the taxation of the citizens of said village in the future, and these plaintiffs and the electors of said village have no adequate remedy at law." Defendants insist that this paragraph of the petition does not state facts sufficient to constitute a cause of action for the equitable relief prayed. We think this contention is sound. Section 88, art. I, ch. 14, Comp. St. 1907, upon which plaintiffs rely, is as follows: ...
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