Leese v. Courier Publ'g & Printing Co.

CourtSupreme Court of Nebraska
Writing for the CourtPER CURIAM.
Citation106 N.W. 443,75 Neb. 391
Decision Date20 December 1905
PartiesLEESE, JUSTICE OF THE PEACE, v. COURIER PUBLISHING & PRINTING CO.

75 Neb. 391
106 N.W. 443

LEESE, JUSTICE OF THE PEACE,
v.
COURIER PUBLISHING & PRINTING CO.

Supreme Court of Nebraska.

Dec. 20, 1905.



Syllabus by the Court.

The taking of fees by a justice of the peace, for services performed by him, and for which no fee is allowed, is actionable under the provisions of section 34, c. 28, Comp. St. 1903.


Commissioners' Opinion. Department No. 2. Error to District Court, Lancaster County; Frost, Judge.

Action by the Courier Publishing & Printing Company against Walter A. Leese, justice of the peace. Judgment for plaintiff, and defendant brings error. Affirmed.

[106 N.W. 443]

T. J. Doyle, for plaintiff in error.

J. A. Brown and C. O. Whedon, for defendant in error.


JACKSON, C.

This is an action to recover the penalty provided by section 34, c. 28 of the Complied Statutes of 1903, and is the second appearance of this case here; the first opinion appearing in 65 Neb. 581, 91 N. W. 357.

After the cause had been remanded plaintiff filed an amended petition, wherein the allegation material to the inquiry is: “That said defendant, Walter A. Leese, justice of the peace, on or about the 24th day of July, 1899, did demand of this plaintiff the sum of 50 cents for the approval of said appeal bond as follows: 10 cents for filing the same; 15 cents for copying the same upon his docket; and 25 cents for acknowledgment and certificate to the same. That the charging and taking of said sums of 15 cents for copying, and 25 cents for acknowledgment and certificate, were unauthorized and unlawful, and said defendant did demand, charge, and take from this plaintiff the said sums without authority and contrary to law. That said sums so demanded and received by the defendant from this plaintiff, as aforesaid, were more than by law the defendant was entitled to receive, and the taking thereof was the taking of greater fees than allowed by law, and was in violation of section 34,

[106 N.W. 444]

c. 28 of the Compiled Statutes of Nebraska of 1903, entitled ‘Fees.’ Whereby the defendant became indebted to the plaintiff in the sum of $50, no part of which has been paid.” The answer to the amended petition contains, first, a general denial; second, a plea of the statute of limitations; third, a want of legal capacity to sue; and, fourth, the constitutionality of the act under which the action is brought, together with the issue that the petition fails to state a cause of action. The reply is a denial of the allegations of new matter. A trial on the issues thus tendered terminated in a verdict being directed for the plaintiff for the sum of $50, and a judgment thereon. The defendant prosecutes error.

The petition in error and argument in support thereof presents the following questions for review: First, that the court erred in overruling an objection to the introduction of any evidence, for the reason that the petition failed to state a cause of action; second, that the action was barred by the statute of limitations; third, that the verdict and judgment are contrary to the evidence; fourth, the constitutionality of the act authorizing the maintenance of the action; fifth, want of legal capacity to sue; and, sixth, that the court erred in directing a verdict for plaintiff.

The amended petition, upon which the second trial was had, was filed more than four years after the cause of action accrued, and it is argued that the cause of action therein stated is entirely different from the one contained in the original petition and that the action is therefore barred by the statute. An examination of the first opinion, however, discloses that the identical items enumerated in the amended petition were involved in the original cause of action, and that it was because of the charging and taking of the fees said to be illegal that the first judgment was reversed. The original petition was offered in evidence at the second trial, and it appears that the only difference is that in the original petition it was charged that the defendant did demand of this plaintiff the sum of 50 cents for the approval of said appeal bond, and did demand...

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2 practice notes
  • Beckwith v. Dierks Lumber & Coal Co.
    • United States
    • Supreme Court of Nebraska
    • December 20, 1905
    ...presumed to be satisfied with it as given. One claiming title to personal property through a sale under attachment proceedings in [106 N.W. 443]justice court must show legal notice to the defendants of the pendency of the action and that the property claimed was attached therein. Commission......
  • Downey v. Coykendall, No. 16,358.
    • United States
    • Supreme Court of Nebraska
    • April 8, 1911
    ...forbids.” That language was quoted and approved by this court in the case first above cited. Leese v. Courier Publishing & Printing Co., 75 Neb. 391, 106 N. W. 443, was a case where the defendant ordered a transcript in order to perfect an appeal, and as a condition for making such transcri......
2 cases
  • Beckwith v. Dierks Lumber & Coal Co.
    • United States
    • Supreme Court of Nebraska
    • December 20, 1905
    ...presumed to be satisfied with it as given. One claiming title to personal property through a sale under attachment proceedings in [106 N.W. 443]justice court must show legal notice to the defendants of the pendency of the action and that the property claimed was attached therein. Commission......
  • Downey v. Coykendall, No. 16,358.
    • United States
    • Supreme Court of Nebraska
    • April 8, 1911
    ...That language was quoted and approved by this court in the case first above cited. Leese v. Courier Publishing & Printing Co., 75 Neb. 391, 106 N. W. 443, was a case where the defendant ordered a transcript in order to perfect an appeal, and as a condition for making such transcript the......

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