Dayton v. City of Lincoln

• Decision Date: 16 January 1894
• Parties: DAYTON v. CITY OF LINCOLN.
• Court: Nebraska Supreme Court

39 Neb. 74

57 N.W. 754

DAYTON

v.CITY OF LINCOLN.

Supreme Court of Nebraska.

Jan. 16, 1894.

Syllabus by the Court.

1. It is prejudicially erroneous to submit to the jury issues arising from the pleadings in support of which there stands uncontradicted sufficient competent evidence, where the effect of submitting such issues may be to mislead the jury, and withdraw its attention from the controverted issues.

2. In awarding just compensation for property damaged for public use, general benefits to the public at large from the proposed improvements cannot be considered, while special benefitsto the property damaged may be. Schaller v. Omaha, 36 N. W. 533, 23 Neb. 325, followed.

3. An instruction in such a case whereby the jury is told that if the premises have not in fact suffered a diminution in their market value, and were not damaged, the jury should find for the defendant, is erroneous, in not excluding from the consideration of the jury general benefits.

4. Section 36 of the act relating to cities of the first class does not provide for the allowance or rejection of claims against such cities for unliquidated damages by the city council, or for appeals from the action of the council on claims of that nature. Notwithstanding that section, an original action may be maintained for unliquidated damages in any court of competent jurisdiction.

Error to district court, Lancaster county; Hall, Judge.

Action by Louise P. Dayton against the city of Lincoln to recover damages resulting from the change of grade in streets. There was judgment for defendant, and plaintiff brings error. Reversed.

J. R. Webster, for plaintiff in error.

N. C. Abbott, City Atty., (Abbott, Selleck & Lane, of counsel,) for defendant in error.

IRVINE, C.

This action was brought by the plaintiff in error against the city of Lincoln to recover damages sustained by property of plaintiff in error by reason of a change of grade of Ninth and G streets. The action was brought in the county court, and appealed to the district court, where there was a trial, and a verdict and judgment in favor of the city. The defendant answered, averring that the court had no jurisdiction, for the reason that the law required all claims of the nature of plaintiff's to be presented to the city council for allowance or rejection, and that the only remedy for erroneous action on the part of the council is by appeal to the district court, and not by original action. This question was before the court in the case of City of Lincoln v. Grant, 56 N. W. 995, but that judgment was reversed upon other grounds, and the question was not there decided.

The plaintiff in error contends that, the lower court being without jurisdiction to try the case, this court is without jurisdiction to review it upon error, and there must be a judgment of dismissal for want of jurisdiction. The contention thus raised calls for a construction of section 36 of the act relating to cities of the first class. By that section it is provided as follows: “All claims against the city must be presented in writing with a full account of the items, verified by the oath of the claimant or his agent, that the same is correct, reasonable, and just, and no claim shall be audited or allowed unless presented or verified as provided for in this section, and read in open council. The vote of each councilman upon the allowance of any claim shall be entered upon the minutes; provided, that no claim arising either on contract or tort exceeding the sum of twenty-five dollars shall be allowed until the same shall have been read in open council and the name of the claimant and the amount and the nature of the claim published once in a daily newspaper published and of general circulation in said city. Not more than five words shall be used in stating the nature of any such claim. Any taxpayer in such city or the claimant may, after the allowance of any claim required by this section to be published, appeal therefrom to the district court of the county in which such city is situated by giving notice of such appeal to the city clerk within two days after the allowance of the same, and filing, within ten days after such allowance, a bond or obligation in favor of said city with the clerk thereof, and with good and sufficient sureties, to be approved by said clerk, conditioned that said appellant shall prosecute said appeal to effect and without any unnecessary delay, and pay all costs that may be adjudged against said appellant; and in an appeal by a taxpayer, in case the claimant finally recovers judgment for as much or a greater sum, exclusive of interest, as allowed by the council, such appellant shall pay all costs made by such appellate proceedings; and in an appeal by a claimant, in case such claimant does not recover of said city as large a sum, exclusive of interest, as allowed by such council, said claimant shall pay all costs made by said appeal. The procedure of such appeal shall be in all respects as near as may be like the procedure on appeal from the county board to the district court. In case of appeal no warrant shall issue for the payment of any claim until said appeal is finally determined. And to maintain an action against said city for any unliquidated claim it shall be necessary that the party file in the office of the city clerk, within three months from the time such right of action accrued, a statement giving full name and the time, place, nature, circumstance, and cause of the injury or damage complained of. No appeal bond shall be required of the city by any court in any case of appeal by said city.” This section requires, in the first place, that all “claims” against the city must be presented in writing under oath, read in open council, and the vote upon their allowance taken and recorded, and that claims in excess of a certain amount must first be advertised in a daily newspaper. It then provides for an appeal from the order of allowance or rejection either by the claimant or by a taxpayer. After the provision in regard to appeals comes the provision that “to maintain an action against said city for any...