Chi., B. & Q. R. Co. v. Cass Cnty.

Citation70 N.W. 955,51 Neb. 369
PartiesCHICAGO, B. & Q. R. CO. v. CASS COUNTY ET AL.
Decision Date21 April 1897
CourtSupreme Court of Nebraska
OPINION TEXT STARTS HERE
Syllabus by the Court.

1. If the judgment which a litigant seeks to have reviewed in this court is appealable, he may have it reviewed on appeal or error, at the election; he may make such election at any time before the final submission of the case in this court; he may dismiss his appeal and stand on his petition in error or vice versa; but if he makes no such election this court will review the judgment of the district court on error only when there is filed with the transcript here a petition in error.

2. Though the grounds of a motion for a new trial are not stated in the exact language of section 314 of the Code of Civil Procedure, if they are in substance the same the statute is satisfied.

3. Where the grounds of a motion for a new trial are in substance those prescribed by section 314 of the Code, and the assignments in the petition in error are based upon those grounds, this court is not without jurisdiction to review a case on error simply because the petition in error does not specifically allege that the court below erred in overruling the motion for a new trial.

4. The tax agent of a railroad company in the year 1895 and for several years prior thereto listed for taxation with the officers of a school district a bridge which was a part of his principal's railroad, erroneously believing that such bridge was within the limits of such school district. The railroad company paid the taxes assessed by the school district against the bridge for all the years prior to 1895. It then brought suit to enjoin the 1895 tax on the ground that said bridge was as a matter of fact not within the limits of such school district. Held: (1) That the action did not call into question the legality of the organization of the school district. (2) That if jurisdiction to levy the tax was a franchise or privilege within the meaning of section 8, subd. 3, c. 79, Comp. St., and such franchise or privilege was called into question by the action, still the court was not required by said statute to conclusively presume anything further than the legal organization of the school district. (3) That the court was not required to conclusively presume that the bridge was within the limits of the school district because it had assumed the right to tax it for more than one year. (4) That the court was not bound to presume that the bridge was within or without the limits of the school district. (5) That the situs of the bridge was a question of fact to be determined from the evidence. (6) That the railroad company was not estopped from maintaining the action because of its conduct in listing the property for taxation. (7) That a proper remedy of the railroad company was injunction and not quo warranto.

5. The district courts of this state are by the constitution invested with general equity jurisdiction, and this includes the authority to enjoin the collection of a void tax; and this jurisdiction the legislature can neither take away nor impair.

6. In the absence of express legislative authority the officers of a school district are without jurisdiction to levy a tax upon real estate not within the limits of their school district, and a tax so levied, no matter for what purpose, is absolutely void.

7. The evidence examined, and held to establish (1) that the eastern boundary of school district No. 2, in Cass county, coincides with the eastern boundary of section 20, in township 12 N., and range 14 E., of the sixth P. M.; (2) that the eastern boundary of said section 20 is the high-water line of the west bank of the Missouri river; (3) that no part of the bridge in controversy is within the limits of said school district.

Error to district court, Cass county; Ramsey, Judge.

Action by the Chicago, Burlington & Quincy Railroad Company against the county of Cass and others. From a decree for defendants, plaintiff brings error. Reversed.J. W. Deweese, F. E. Bishop, and Byron Clark, for plaintiff in error.

C. S. Polk, A. J. Graves, and Beeson & Root, for defendants in error.

RAGAN, C.

In the district court of Cass county the Chicago, Burlington & Quincy Railroad Company (hereinafter called the “Railroad Company”) brought this suit against said county, the county treasurer, school district No. 2, and Plattsmouth precinct thereof, to enjoin the collection of certain taxes levied for school purposes by said school district No. 2 against the west half of the railroad company's bridge across the Missouri river, basing its right to the injunction upon the contention that no part of the west half of said bridge was within the limits of said school district. The district court dismissed the railroad company's petition, and it brings the decree here for review. The connection of the county and the county treasurer thereof with the case is unimportant so far as this opinion goes, and, in what we have to say, no reference will be made to Plattsmouth precinct, as the rights of all the parties will be determined by the decision of the question as to whether any part of the west half of the railroad company's bridge is in said school district No. 2.

1. The defendants below contend that the case is here on error, while the railroad company insists that it is here on appeal. It appears that, upon the rendition of the decree by the district court, the railroad company filed a motion for a new trial, and, upon this being overruled, took an exception to such ruling. Within six months after the date of the rendition of the decree, the railroad company filed in this court a certified transcript of the proceedings in the case; that thereupon a summons in error was issued by the clerk of this court, and served upon the defendants below, The record does not contain this summons in error, but it is admitted by counsel here that it was issued and served; nor does the record disclose that this summons in error was issued in pursuance of a written præcipe filed therefor by the railroad company, as provided by section 585 of the Code. But, since the clerk of this court would have had no authority to issue a summons in error without such written præcipe therefor having been filed, we will presume that such præcipe was filed. Within a year from the date of the rendition of the decree below, the railroad company filed with the clerk of this court a paper which is substantially a petition in error, although denominated “Assignments of Error on Appeal.” In Beatrice Paper Co. v. Beloit Iron Works, 46 Neb. 900, 65 N. W. 1059, it was said that, “if the judgment which the litigant seeks to have reviewed is appealable, he may have it reviewed on appeal or error, at his election; and he may make such election at any time before the final submission of the case in this court. He may dismiss his appeal, and stand on his petition in error, or vice versa; but, if he makes no such election, this court will review the judgment of the district court on error only when there is filed with the transcript here a petition in error.” To the same effect, see Shaw v. Robinson & Stokes Co. (Neb.) 70 N. W. 953;Woodard v. Baird, 43 Neb. 310, 61 N. W. 612;Monroe v. Reid, 46 Neb. 316, 64 N. W. 983. Since the railroad company made no application to this court before the submission of this case to withdraw or dismiss its petition in error, and stand upon its appeal, and taking into consideration its other conduct in the premises, we think the railroad company must be held to have elected to have this case tried in this court on error.

2. The defendants in error insist that the decree of the district court must be affirmed without an examination of assignments of error in the petition in error, because it is not specifically alleged by the railroad company in its petition in error that the district court erred in overruling its motion for a new trial. To sustain this contention, we are cited, among others, to Carson v. Funk, 27 Kan. 524. In that case the petition in error did not aver that the court below erred in overruling the plaintiff in error's motion for a new trial, but the petition in error did aver that “there were errors of law occurring at the trial of the case; and the court held that, since the action of the court in overruling the motion for a new trial was not assigned as error, under the assignments in the petition in error, “there were errors of law occurring at the trial,” the supreme court should not review the action of the district court in admitting and rejecting evidence, or in giving and refusing to give instructions. The case does not support the contention of the defendants in error. Section 314 of the Code of Civil Procedure specifies the causes for which a new trial may be granted on motion of the defeated party. Section 317 of the Code provides that, in assigning the grounds on a motion for a new trial, it shall be sufficient to assign the same in the language of the statute. We do not understand this section of the Code to be mandatory, and, though the grounds of a motion for new trial are not stated in the exact language of the statute, if they are in substance the same the statute is satisfied; and where the grounds of a motion for a new trial are in substance those prescribed by section 314 of the Code, and the assignments in the petition in error are based upon those grounds, we do not think this court is deprived of jurisdiction to review the case on error, simply because the plaintiff in error does not specifically allege that the court below erred in overruling the motion for a new trial.

3. The issues made by the pleadings in the case at bar were: (1) Whether any part of the west half of the railroad company's bridge was in said school district No. 2. This was an issue of fact. (2) Whether the railroad company, by voluntarily listing the west half of the bridge for taxation by the school district in the year 1895 and prior years, had...

To continue reading

Request your trial
10 cases
  • Petroleum Nav. Co. v. King County
    • United States
    • United States State Supreme Court of Washington
    • 29 Noviembre 1939
    ......Lovett, 95 Me. 165, 49 A. 666, 56 L.R.A. 634; Chicago, B. & Q. R. Co. v. Cass County, 51 Neb. 369, 70 N.W. 955. . . We. agree with appellants ......
  • Weiser National Bank v. Jeffreys
    • United States
    • United States State Supreme Court of Idaho
    • 27 Marzo 1908
    ......270;. State v. Burrough, 174 Mo. 700, 74 S.W. 610;. Chicago etc. Ry. Co. v. Cass Co., 51 Neb. 369, 70. N.W. 955; Sommer v. Boyd, 48 Ohio St. 648, 29 N.E. 497; Centennial Eureka ......
  • Samuelson v. Tribune
    • United States
    • United States State Supreme Court of Wyoming
    • 16 Febrero 1931
    ...... Davis v. Wright, (Colo.) 129 P. 524; and in. Nebraska, C. B. & Q. R. R. Co. v. Cass Co., (Nebr.) . 70 N.W. 955; New Jersey State v. Taylor, (N. J.) 35. A. 798; State v. Motley, ......
  • Phila. Mortg. & Trust Co. v. City of Omaha
    • United States
    • Supreme Court of Nebraska
    • 18 Diciembre 1901
    ......Co. v. Village of Bellevue, 39 Neb. 885, 58 N. W. 446;Chicago, B & Q. R. Co. v. Cass Co., 51 Neb. 369, 70 N. W. 555. In Bellevue Imp. Co. v. Village of Bellevue, supra, it is stated in ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT