Douglas Cnty. v. Broadwell

• Decision Date: 26 September 1914
• Docket Number: No. 17781.,17781.
• Citation: 96 Neb. 682,148 N.W. 930
• Parties: DOUGLAS COUNTY v. BROADWELL ET AL.
• Court: Nebraska Supreme Court

96 Neb. 682

148 N.W. 930

DOUGLAS COUNTY

v.BROADWELL ET AL.

No. 17781.

Supreme Court of Nebraska.

Sept. 26, 1914.

Syllabus by the Court.

A judge of the district court has the right and power to set aside and vacate any judgments or orders made by him during the term at which the vacating order is made. Such vacating order may be made upon the court's own motion, if satisfied that an error has been made.

The defendant was the clerk of the district court of D. county. By virtue of his office as clerk of said court, he was a member and the clerk of the board of commissioners of insanity for said county. He refused to account for the fees and compensation received for his services on said board, claiming that the fees were not the fees of the clerk of the district court. In a suit against him on his official bond, it is held that under the statute and the decision in the case of Boettcher v. Lancaster County, 74 Neb. 148, 103 N. W. 1075, it was his official duty to report and account for the receipt of such fees.

Where after a suit against such clerk for an accounting and payment of said fees a compromise was had between him and the county board, by which a less amount was agreed upon and accepted than was due according to law, it is held that there was no question to be compromised, but it was the plain duty of such clerk to report and account for the fees received, and therefore such compromise was void.

Appeal from District Court, Douglas County; Kennedy, Judge.

Action by the County of Douglas against Frank A. Broadwell and others. From judgment for plaintiff, defendants appeal. Affirmed.

Hamer, J., dissenting.Smyth, Smith & Schall, J. H. Van Dusen, and Stout, Rose & Wells, all of Omaha, for appellants.

John P. Breen, of Omaha, amicus curiæ.

Geo. A. Magney and Charles Haffke, both of Omaha, for appellee.

REESE, C. J.

On the 5th day of March, 1907, a petition was filed in the district court for Douglas county, in an action wherein that county sought to recover from Frank A. Broadwell, a former clerk of the district court of Douglas county, and the American Bonding & Trust Company, his surety, on his official bonds, the purpose of which was to recover from Broadwell the amount of certain fees, some of which he had collected, and some of which he had not collected, while clerk of the district court. There were three classes of claims contained in the petition, to wit: (1) Fees earned by such clerk, but not collected; (2) fees earned and collected for issuing naturalization papers under the federal laws; (3) fees received by him as a member and clerk of the board of insanity. To this petition certain motions were filed for more specific statements of the causes of action, but which seem not to have been ruled upon. On the 20th of December, 1909, the following stipulation was filed in the case:

“It is hereby agreed by and between the parties hereto that, as a settlement and compromise of all matters in dispute herein and of all matters referred to in the plaintiff's petition, judgment shall be taken in favor of the plaintiff and against the defendants in the sum of $1,250 and costs of this action.”

This stipulation was signed by the county attorney for plaintiff and the attorneys for defendants. On the 21st day of December of the same year judgment was rendered on the stipulation in favor of plaintiff county, and against defendants, for the said sum of $1,250 and costs of suit, and which defendant Broadwell paid. On the 3d day of February, 1910, and during the same term of court, William G. Ure asked leave to intervene in the case. Leave was not granted, but the court entered an order vacating its former judgment, as follows:

“It appearing to the court that the subject-matter of this litigation involves the compensation of the defendant Broadwell as clerk of this court, and that such compensation was fixed by the statute, and that the board of county commissioners was and is without power to increase or diminish the same, and was and is without power to compromise this controversy, it not being contended that the defendants or either of them are insolvent: Now, therefore, on its own motion, it is by the court ordered and adjudged that the judgment heretofore entered herein, to wit, on December 20, 1909, be, the same is, hereby vacated and set aside, and this cause is hereby retained for trial. To which order of the court plaintiff and defendants severally except. It is further ordered that the moneys paid and assignment delivered by the defendant Broadwell in pursuance of the agreement and stipulation of compromise be returned to said Broadwell or held subject to his orders, to which order of the court plaintiff and defendants severally except.”

On the 19th day of May, 1910, plaintiff filed its amended petition consisting of six counts, or causes of action, a count for each year of defendant's service as clerk of the district court for which he collected and received fees for services as member and clerk of the board of insanity of said county. The claims for fees collected for services rendered in the other capacities, as charged in the original petition, appear to have been abandoned.

Defendants answered, admitting that for the time named in the several causes of action defendant Broadwell was the clerk of the district court of Douglas county, that he was a member and clerk of the commission or board of insanity, that, as such member and clerk of such board, he collected fees for such services, and that they are still retained by him; alleging that the claims for all such fees received by him were duly verified, audited, allowed and paid by the county board, that no appeal was ever taken from such allowance, and therefore the right of plaintiff to question the right of defendant Broadwell to said money was fully and finally adjudged, adjudicated, and determined, that claims for other services rendered on said board, the fees for which amount to more than $3,000, have also been presented to the county board for allowance and payment, but said board have neither allowed nor disallowed said claims, and they are still pending. The fact of the compromise of the matters and things alleged in the petition, the stipulation and judgment, hereinbefore referred to, together with the correspondence and opinion of the county attorney to the county board, as well as the payment of the judgment and costs are pleaded in apt language, and the averments of which need not be set out in this part of this opinion. It is further alleged that at the time of the said compromise there was a bona fide dispute and contention, between plaintiff on the one hand and these defendants on the other, as to the right of the county to collect from the defendant Broadwell any of the moneys referred to in the petition, and a bona fide controversy as to the right of defendant Broadwell to receive from the county the moneys due upon the claims filed and pending before the county board for the services rendered by him as aforesaid; that for the purpose of compromising, settling, and adjusting all of said controversies, disputes, and differences, and for the purpose of avoiding expensive litigation, the compromise was entered into and the moneys paid, as hereinabove stated, the same being a final and complete adjustment of all of said differences, and therefore plaintiff is not entitled to recover anything in this action. Prayer for dismissal of the action and for judgment for costs. Neither the transcript nor abstract show any reply to the answer.

The cause was tried to the court, who found the facts and conclusions of law in favor of plaintiff, and rendered judgment against defendants for the sum of $9,528.86. Motions were filed by defendants to set aside the findings of fact and conclusions of law, and for a new trial, all of which were overruled. Defendants appeal.

The cause was tried upon an agreed statement of facts, which is of too great length to be set out in full, but will be fairly stated in condensed form. It is stipulated: That defendant Broadwell was the clerk of the district court for Douglas county for the time alleged, with the defendant American Bonding & Trust Company as his surety. That during the time of defendant's incumbency in said office the bonds of said company were of binding force and effect. That during the time defendant held said office he was one of the commissioners of insanity, was the clerk of said board, performed the duties thereof, and earned the fees and compensation for said services provided by law, payment on account thereof being made during the years 1900 to 1905 inclusive, as follows: 1900, $915.65; 1901, $796.10; 1902, $1,166.60; 1903, $1,109.80; 1904, $1,173.90; 1905, $797.75. That at various times during said years defendant filed with the board of county commissioners claims covering the fees and compensation for said services, when said claims were allowed, warrants therefor issued and paid. That no appeal was ever taken by the county or any person from the allowance of said claims. That, covering the fees and compensation for said services for the years 1906 and 1907, defendant filed his claims with said board, but they have never been allowed nor disallowed. That defendant has at all times since he first entered upon the duties of his office refused to enter upon his fee book and report to the said county commissioners the fees earned by him as a member and clerk of said board of insanity, but has at all times claimed that said fees and compensation were not fees of the office of the clerk of the district court for which he was required to account and report to the county board. That the suit was brought for the purpose of recovering from defendant and his surety the sums above stated, with interest thereon, received by him on account of said so-called insanity fees. That while the suit was pending, and about the month of September, 1909, negotiations for a settlement of the...