Dodge County v. Acom

• Citation: 100 N.W. 136,72 Neb. 71
• Decision Date: 09 June 1904
• Docket Number: 11,707
• Parties: DODGE COUNTY ET AL. v. THOMAS R. ACOM ET AL
• Court: Supreme Court of Nebraska

100 N.W. 136

72 Neb. 71

DODGE COUNTY ET AL. v. THOMAS R. ACOM ET AL

No. 11,707

Supreme Court of Nebraska

June 9, 1904

ERROR to the district court for Dodge county: JAMES A. GRIMISON JUDGE. Rehearing. Former opinion adhered to.

Grant G. Martin, C. C. McNisk, Frank Dolezal and Robert J. Stinson for plaintiffs in error.

E. F Gray and George L. Loomis, contra.

BARNES J. SEDGWICK, J., took no part in the decision.

OPINION

BARNES, J.

Our former opinion in this case appears in 61 Neb. 376. A rehearing was allowed, and the case was argued the second time before the commission. Since that time one or more opinions have been written, but we have been unable to approve of any of them; therefore the case is again considered by the court.

On a careful examination of the record, we are satisfied with our former opinion on the question of the jurisdiction of the county board to locate the ditch and levy the assessments and decline to again consider that matter. However, we will briefly review the questions relating to the method of procedure in such cases, and determine whether the assessments fixed by the county board in this case should be permitted to stand. It is claimed that in our former opinion the 98 objectors were all placed on the same footing, and, because the evidence showed that some of them were benefited by the construction of the ditch, therefore the objections of all were overruled. We do not so understand the opinion. It appears that all the objectors joined in one petition in error, and, strictly speaking, we might well have followed the rule, so often announced, that where the judgment is right as to one of the joint plaintiffs it must be sustained as to all of them. It seems, however, that the objections and assignments of error, although all of them are in the same terms, were specifically made on behalf of each of the plaintiffs in error, and were so considered on the former hearing. The board, in fixing the assessments in such cases, acts judicially, and therefore its decision may be reviewed by the district court on a petition in error; and, of course, error will lie from the decision of that court to this. This was the procedure adopted in County of Dakota v. Cheney, 22 Neb. 437, 35 N.W. 211, and in State v. Colfax County, 51 Neb. 28. Again, on principle, a party to a suit would be entitled to prosecute error where no appeal is provided for. The act in question provides for an appeal from certain of the findings and orders of the board, but not from the order fixing the assessments. One cannot be denied his right of review in the appellate courts, and proceedings in error are always resorted to where no other method is pointed out or provided for. In such error proceedings the orders of the county board will be given the same weight and conclusiveness as the verdict of a jury, or the findings and judgment of a court, and will not be reversed or set aside unless it clearly appears that the evidence fails to sustain them. With this rule in view, we will now consider the contention of counsel that at least some of the...