Kyd v. Gage Cnty.

• Decision Date: 24 October 1893
• Citation: 38 Neb. 131,56 N.W. 799
• Parties: KYD, SHERIFF, v. GAGE COUNTY.
• Court: Nebraska Supreme Court

38 Neb. 131

56 N.W. 799

KYD, SHERIFF,

v.GAGE COUNTY.

Supreme Court of Nebraska.

Oct. 24, 1893.

Syllabus by the Court.

The sheriff is ex officio jailer of his county. He may, if he so elect, appoint a jailer who shall be a deputy, and take the oath required by law. The jailer is not paid a salary, but is allowed for the board and care of prisoners actually confined in the jail, and where there are prisoners confined in the county jail $1.50 per day, to be paid by the county.

Error to district court, Gage county; Bush, Judge.

Action in assumpsit by Robert Kyd against Gage county. There was judgment for defendant, and plaintiff brings error. Reversed.Alfred Hazlett, for plaintiff in error.

R. W. Sabin, for defendant in error.

MAXWELL, C. J.

This is an action upon an account. The plaintiff alleges in his petition “that he is now and has been duly elected and qualified sheriff of said defendant since January 7, 1892, and that said defendant is a corporation under the laws of Nebraska, having a population of over 25,000 people. That the defendant is indebted to plaintiff in the sum of $3,096.93, with interest thereon at the rate of ______ per cent. per annum from the ______ day of ______, A. D. 1893, as money due and unpaid on a certain account, a true copy of which said account is hereto attached; the said itemized account being for moneys due this plaintiff from said defendant for fees due him as sheriff of Gage county, Neb., for moneys advanced for transporting prisoners and for board of prisoners at the request of the defendant. That said account sued on in this action was disallowed in part, as shown by the county clerk's transcript, hereto attached, marked ‘Exhibit B,’ and made a part of this petition, from which disallowance this plaintiff has appealed according to law. No part of said account has been paid, and there is now due thereon from defendant to plaintiff the said sum of $3,096.93, with interest as above set forth, for which, with costs of suit, plaintiff asks judgment against said defendant.” To this petition the county filed an answer, as follows: “Now comes the said defendant, and for answer to plaintiff's petition herein alleges: (1) It admits that the plaintiff is the duly-elected sheriff of said defendant since January 7, 1892, and that said defendant is a corporation having a population of over 25,000 people. (2) Defendant admits that that portion of plaintiff's bill as shown by the petition and the bills and record of the proceedings of the board of supervisors attached thereto, marked ‘Custody of Prisoner,’ was wholly disallowed and rejected by the board of supervisors at their regular session, as shown in plaintiff's petition, amounting to the sum of $538.50. (3) Defendant alleges that the sum of $538.50 was allowed to Robert R. Kyd, the son of plaintiff, for the same period of time, as jailer of said county, with plaintiff's knowledge and consent, and that said plaintiff is estopped from claiming the same thing for himself. Wherefore defendant asks that said action be dismissed at plaintiff's costs.”

There is also a transcript of the record containing itemized accounts and the report of the board of supervisors, as follows:

“The committee on settlement with county officers reported and recommended the allowance of certain claims, among which were the following: (16) Robert Kyd, sheriff, fees and charges, 3rd Qr. '92, $297.90. (17) Robert Kyd, sheriff, fees and charges, 4th Qr. '92, $715.35. (18) Robert Kyd, sheriff, fees and charges, 1st Qr. '93, $1,174.76. (19) Robert Kyd, sheriff, fees and charges, 2nd Qr. '93, $908.92. It was moved by Supervisor Cully to adopt the report of the committee. It was moved by Supervisor Brown to amend by adopting the report with the exception of certain claims for discount. The amendment carried, and the question, as amended, carried.

Friday, July 14th, 1893. It was moved by Supervisor Spencer that the county attorney be instructed to look over...