May v. Sch.-Dist. 22

• Decision Date: 18 October 1887
• Citation: 34 N.W. 377,22 Neb. 205
• Parties: MAY v. SCHOOL-DISTRICT 22.
• Court: Nebraska Supreme Court

22 Neb. 205

34 N.W. 377

MAY

v.SCHOOL-DISTRICT 22.

Supreme Court of Nebraska.

October 18, 1887.

Syllabus by the Court.

The legal maxim, “lapse of time does not bar the right of the state,” can only apply in favor of the sovereign power, and has no application to school-districts or other municipal corporations deriving their power from the sovereign. The statute of limitations runs for or against school-districts in the same manner as it does for or against individuals. The case of Brewer v. Otoe Co., 1 Neb. 373, commented upon and distinguished.

Error from district court, Cass county; POUND, Judge.E. H. Wooley, for plaintiff.

H. D. Travis, for defendant.

REESE, J.

This action is founded upon a school-district warrant or order, issued by the director and moderator of defendant, for $75, dated September 9, 1879, payable 18 months after date. It is conceded that the warrant became due more than five years prior to the commencement of the suit, and that if the statute of limitations applies to school-district warrants, the action cannot be maintained. Section 10 of the Civil Code provides that civil actions can only be commenced within five years upon a specialty or any agreement, contract, or promise in writing. It is contended, upon the strength of the decision in Brewer v. Otoe Co., 1 Neb. 373, that the statute of limitations does not apply to the indebtedness of municipal corporations.

In Wood, Lim. § 53, it is said: “The maxim nullum tempus occurrit regi [lapse of time does not bar the right of the crown] only applies in favor of the sovereign power, and has no application to municipal corporations deriving their powers from the sovereign, although their powers, in a limited sense, are governmental. Thus the statute runs for or against towns and cities in the same manner as it does for or against individuals.” Argument need not be prolonged upon this question; we shall be content with citing the following: Cincinnati v. Evans, 5 Ohio St. 594;Lane v. Kennedy, 13 Ohio St. 42;Cincinnati v. Church, 8 Ohio, 298;School Directors v. Georges, 50 Mo. 194;Kennebunkport v. Smith, 22 Me. 445; Clements v. Anderson, 46 Miss. 581;Evans v. Erie Co., 66 Pa. St. 222; St. Charles Co. v. Powell, 22 Mo. 525;Callaway Co. v. Nolley, 31 Mo. 393;Abernathy v. Dennis, 49 Mo. 469;Pimental v. San Francisco, 21 Cal. 351;Clark v. Iowa City, 20 Wall. 583;De Cordova v. Galveston, 4 Tex. 470;Underhill v. Trustees, 17 Cal. 172;Baker v. Johnson Co., 33 Iowa, 151; 2 Dill. Mun. Corp. § 668. The questions discussed in Brewer v. Otoe Co., supra, by Judge LAKE, in writing the opinion of the court, does not arise in this case. That decision is based almostentirely upon the statutes relating to county warrants. In referring to the section of the Code above mentioned, the learned judge says: “This provision applies as well to...