Clark v. Bd. of Cnty. Comm'rs of Saline Co.

• Decision Date: 15 January 1880
• Parties: HENRY T. CLARK, PLAINTIFF IN ERROR, v. BOARD OF COUNTY COMMISSIONERS OF SALINE CO., DEFENDANT IN ERROR.
• Court: Nebraska Supreme Court

9 Neb. 516

4 N.W. 246

HENRY T. CLARK, PLAINTIFF IN ERROR,

v.BOARD OF COUNTY COMMISSIONERS OF SALINE CO., DEFENDANT IN ERROR.

Supreme Court of Nebraska.

Filed January 15, 1880.

Error to the district court of Saline county. Tried there before Pound, J., sitting in the absence of Weaver, J.O. P. Mason and J. R. Webster, for plaintiff in error.

Hastings & Mc Gentie, for defendant in error.

MAXWELL, C. J.

The petition states in substance that the State of Nebraska, by an act of the legislature, approved February 15, 1869, donated to the county of Saline 1,000 acres of internal improvement land to aid the county in the erection of a bridge across the Blue river, said lands being conveyed to the county in March, 1869; that said lands were valued at the sum of $5,000, and were conveyed to one Hunt, who had contracted to build said bridge, and had given bond for the completion of the same, he being paid the further sum of $500; that on or about the fourth day of October, 1870, and before the construction of any portion of said bridge, the plaintiff took an assignment of said contract from Hunt, and received a conveyance of said land from him, and that the commissioners made a novation of said contract, whereby the plaintiff was to erect the bridge, and the commissioners then desiring to change the plan of the bridge from a Killian to a Howe truss, made said contract with the plaintiff, and paid him therefor the sum of $1,000 additional; that the commissioners thereafter changed the location of said bridge to the section line between sections 28 and 29, in township 8 north, in said county, at which point the plaintiff erected said bridge, and the same was duly accepted; that said bridge was 100 feet in length, and the approaches to the same 108 feet in length; that said bridge was of the value of $6,160, and that the support to the bridge was worth the sum of $500; that the title to said lands wholly failed, neither the state of Nebraska nor Saline county having title to the same; wherefore the plaintiff prays judgment for the value of the bridge, less the amount already paid.

The defendant demurred to the petition upon the ground that the facts stated therein were not sufficient to constitute a cause of action. The demurrer was submitted to the court at the May term, 1875, and taken under advisement, but no decision appears to have been had thereon. In June, 1878, the defendant filed an answer, wherein they allege in substance that they entered into a contract with Hunt for the erection of said bridge, and conveyed to him, by quitclaim deed, the interest of the county in said lands, and that the only contract entered into with the plaintiff was that in relation to the Howe truss, and that said bridge was built of poor material, and not properly constructed, and had to be replaced in November, 1877, and was not worth to exceed $1,000, and deny all the other allegations of the petition. The reply consists of a denial of the new matter set up in the answer. On the trial of the cause the jury returned a verdict in favor of the defendant, upon which judgment was rendered. The plaintiff brings the cause into this court by petition in error.

It appears from the bill of exceptions that the plaintiff challenged the “panel and array of the petit jury empanelled and summoned to try the issues joined between the plaintiff and defendant,” because the county commissioners did not “select sixty persons having the qualifications of jurors in a number as near as may be proportionate from each precinct in the county,” etc.; and also that one, Hall, had been drawn and acted as juror at the last term of the court. The motion was supported by an affidavit, which is not denied, and also by a copy of the original canvass of the votes at the last general election in Saline county, from which it appears that the whole number of votes polled in said county at said election was 2,345. The motion to quash was overruled, to which the plaintiff excepted, and now assigns the same for error.

Section 658 of the Code of Civil Procedure provides that “in each of the counties of this state, where a district court is appointed or directed to be holden, the county commissioners of the county shall, at least fifteen days before the first day of the session of the court, meet together, or any two of them may meet, and select 60 persons possessing the qualifications prescribed in section 657, and, as nearly as may be, a proportionate number from each precinct in the county, and shall, within five days thereafter, furnish to the clerk of the district court of the county, or his deputy, a list of the names of the persons selected.” Gen. St. 642.

Section 659 provides that “the clerk or deputy clerk receiving the names shall write the name of each person selected on a separate ticket, and place the whole number of tickets into a box or other suitable and safe receptacle, and shall preserve the names furnished by the commissioners in the files of his office.” Gen. St. 642.

Section 660 provides that “the clerk of the district court or his deputy, and the sheriff, or if there is no sheriff the the deputy sheriff, or if there is no deputy sheriff the coroner of the county, shall, at least ten days before the first day of the session of the district court, meet together and draw by lot, out of the box or receptacle wherein shall be kept the tickets aforesaid, sixteen names, and the persons whose names shall be drawn shall be grand jurors; and the clerk and sheriff shall then draw twenty-four additional names, and the persons whose names are drawn shall be petit jurors.” Gen. St. 643.

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