County of Douglas v. Bennett

• Decision Date: 10 April 1901
• Docket Number: 9,413
• Parties: COUNTY OF DOUGLAS v. GEORGE A. BENNETT ET AL
• Court: Nebraska Supreme Court

85 N.W. 833

61 Neb. 660

COUNTY OF DOUGLAS v. GEORGE A. BENNETT ET AL

No. 9,413

Supreme Court of Nebraska

April 10, 1901

ERROR from the district court for Douglas county. Tried below before FAWCETT, J. Affirmed.

AFFIRMED.

A. N Ferguson, for plaintiff in error.

Wharton & Baird, contra.

OPINION

HOLCOMB, J.

The county of Douglas began an action on the official bond of George A. Bennett, deceased, former sheriff of the county against the sureties thereon, to recover a balance of fees alleged to have been collected by the officer in the performance of his duties as such, in excess of the sums he was authorized to retain, which he had failed, as alleged, to account for and pay over to the county, by reason of which there was a default in the conditions of the bond and a liability existing against the sureties thereon. To the petition the defendants answered, among other things alleging a settlement and full accounting with the county commissioners of all the items mentioned in the petition; that at the date of such settlement the alleged facts in the petition were well known and understood by the county commissioners, and that all accounts were duly and legally settled between the plaintiff and the said officer in his life time. There was also a paragraph in which, as a defense, it was pleaded that the principal on the bond was deceased and his estate administered upon; that due and legal notice of the time for filing claims against the estate had been given, and had expired; that no claim had been filed, and that the claim of the plaintiff as against the estate of the principal had become barred, and by reason thereof the principal and his estate had been released of all liability on the bond, by reason of which the sureties were likewise released and discharged from any liability thereon. A demurrer was interposed to the paragraph of the answer pleading the facts above referred to, which was by the court overruled. The plaintiff thereupon asked and obtained leave to withdraw its reply to the remainder of the answer theretofore filed, and elected to stand on its demurrer. Thereupon the cause came on for hearing on the pleadings, upon which judgment was rendered dismissing the action. From the judgment of dismissal the action is by error proceeding brought here for review. The withdrawal of the reply was, in effect, and admission of the truth of all facts pleaded in the answer, and left the demurr...