Chicago, Burlington & Quincy Railroad Company v. Cass County
| Decision Date | 21 April 1897 |
| Docket Number | 8923 |
| Citation | 70 N.W. 955,51 Neb. 369 |
| Parties | CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY v. CASS COUNTY ET AL |
| Court | Nebraska Supreme Court |
ERROR from the district court of Cass county. Tried below before RAMSEY, J. Reversed.
REVERSED AND REMANDED.
J. W Deweese, F. E. Bishop, and Byron Clark, for plaintiff in error.
A. J Graves, C. S. Polk, and Beeson & Root, contra.
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 praecipe 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 praecipe therefor having been filed, we will presume that such praecipe 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: To the same effect see Shaw v. Robinson, 50 Neb. 403, 69 N.W. 947; 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 the 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 in 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 a 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 estopped itself from resisting the collection of the taxes levied for 1895. The undisputed evidence shows that the railroad company did list the west half of its bridge for taxation by the school district for the year 1895 and prior years. There remains, then, of these the issue of law, whether the railroad, because of its conduct in the premises, is estopped from resisting the collection of the taxes in suit. The third issue made by the pleadings was also one of law, viz., whether the remedy of the railroad company, if it had any, was limited to quo warranto proceedings. The court found generally against the railroad company, and specially that the west half of the railroad company's bridge was situate in said school district No. 2. The petition in error alleges that the court erred in finding that the west half of the bridge was situate in said school district No. 2; that such finding was not sustained by sufficient evidence; that the court erred in entering the decree it did because such decree was contrary to law. In its motion for a new trial the railroad company alleged that the court erred in finding that the west half of its bridge was situate in said school district No. 2; that its finding in that respect was not sustained by sufficient evidence; that the court erred in rendering the decree it did because such decree was contrary to law. The defendants in error now insist that this decree must be affirmed without an examination of the assignments of error in the petition in error because these assignments are not based on grounds specified in the motion for a new trial. We think the contention is without merit. While the motion for a new trial is not in the exact language of the statute, the grounds of the motion for a new trial are the same in substance as those specified in section 314 of the Code and the assignments of the petition in error follow the grounds alleged for a new trial. But it is said in this connection that there were other issues in the case besides the one as to whether the west half of the railroad company's bridge was in school district No. 2; and since the court found generally for the defendants in error, his judgment may be based on finding some of these other issues in favor of the defendants in error; and that if the judgment of the court is based on finding the other issues in favor of the defendants in error, the sufficiency of the evidence to sustain such findings of the court is not called in question by the motion for a new trial. The answer to this is that the other issues were issues of law, not of fact, and the motion for a new trial and the petition in error both allege that the judgment pronounced was erroneous because it was contrary to law.
4. Another contention of the defendants in error is that the decree of the district court must be affirmed because the petition filed by the railroad company in the district court does not state a cause of action. The first argument in support of this contention is that the facts averred in the petition of the railroad company show that its remedy, if it has one, is a quo warranto proceeding. To sustain this contention counsel for the defendants in error cite us to South Platte Land Co. v. Buffalo County, 7 Neb 253. That was an action to enjoin the collection of certain taxes assessed by the city of Kearney upon lands belonging to the South Platte Land Company and included within the limits of said city. It seems that the lands had been taken into said city in 1866 and when so taken were unplatted; and that under the town site act of 1866 the...
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