Miles v. Cheyenne County

• Decision Date: 26 September 1914
• Docket Number: 18,465
• Citation: 148 N.W. 959,96 Neb. 703
• Parties: WILLIAM P. MILES, APPELLANT, v. CHEYENNE COUNTY ET AL., APPELLEES
• Court: Nebraska Supreme Court

148 N.W. 959

96 Neb. 703

WILLIAM P. MILES, APPELLANT, v. CHEYENNE COUNTY ET AL., APPELLEES

No. 18,465

Supreme Court of Nebraska

September 26, 1914

APPEAL from the district court for Cheyenne county: HANSON M GRIMES, JUDGE. Affirmed.

AFFIRMED.

Miles & McIntosh, Nolan & Woodland and Wilcox & Halligan, for appellant.

R. W Devoe, F. E. Williams, D. L. Johnson and A. L. Timblin contra.

REESE, C. J. SEDGWICK, J., concurs in the conclusion. ROSE, J., not sitting.

OPINION

REESE, C. J.

This action is for an injunction to restrain Cheyenne county, its county board, Alva L. Timblin, and Daniel L. Johnson, from executing and carrying out a contract entered into between the county board and the defendant Timblin on the 18th day of October, 1912. It appears that in the years 1888, 1889, Frank B. Johnson and another, now deceased, were engaged in the banking business at Sidney, in Cheyenne county, and the then county treasurer deposited county funds in said bank to the extent of $ 17,357.40. The bank failed, and the money thus deposited, with the exception of the sum of $ 3,000 subsequently paid, was, for the time, lost to the county, but leaving Johnson liable therefor. Later, Mr. Johnson resided in Douglas county, when suit was brought against him in the district court for that county for the balance remaining unpaid. His defense was sustained in the district court, but, upon review in this court, the judgment was reversed, and he was held liable. McIntosh v. Johnson, 51 Neb. 33, 70 N.W. 522. Upon the cause being remanded to the district court, and on April 14, 1898, judgment was rendered in favor of the plaintiff and against Johnson for the sum of $ 13,638.89. So far as is shown by the record, no attempt was made to collect the amount of the judgment, probably owing to the supposed insolvent condition of Johnson, and it became dormant. Defendant Timblin is an attorney of the Douglas county bar. In 1910 the county commissioners of Cheyenne county entered into a contract with Timblin, by which he was employed upon an agreement for a contingent fee to collect the judgment. He entered upon the employment, calling defendant Daniel L. Johnson to his assistance. They investigated Frank B. Johnson's affairs, and, after reviving the judgment, instituted a suit, in the nature of a creditors' bill, in the district court for Douglas county, for the purpose of uncovering certain property claimed by them to belong to Johnson, when it was concluded that the contract with the county board was invalid for the reason that it was not entered into upon the petition of ten freeholders of the county. Accordingly such a petition was presented, and on the 18th day of October, 1912, the contract involved in this action was entered into. There is no copy of the first or original contract in the record, but it is plainly inferred that the two contracts were the same in their terms and provisions. The new contract is as follows:

"This agreement, made in duplicate, by and between the county of Cheyenne, in the state of Nebraska, by and through its duly elected, qualified and acting board of county commissioners, of the first part, and Alva L. Timblin, of Omaha, Nebraska, of the second part, witnesseth:

"That, whereas, on the 14th day of April, 1898, the said county of Cheyenne recovered a judgment in the district court for Douglas county, Nebraska, in the action therein pending, wherein James J. McIntosh, as treasurer of said Cheyenne county, was plaintiff and Frank B. Johnson, of Omaha, was defendant, in the sum of $ 13,638.89, with costs of suit, which action is found in appearance docket 34, at page 295, of the records of Douglas county, and said judgment bearing interest at the rate of 7 per cent. per annum from its date:

"And, whereas, the said judgment is wholly unpaid and the said county of Cheyenne is desirous of collecting the same:

"And, whereas, on the 26th day of November, 1910, said county of Cheyenne, through its board of county commissioners, made and entered into a contract, with said Alva L. Timblin, for the collection thereof, and that said Alva L. Timblin, acting under said contract, has performed a great amount of work toward the collection of said judgment, and has caused said judgment to be revived, and has had proceedings, in the nature of examination of the debtor, and has collected much evidence, pertinent and necessary to the collection of said judgment, and has instituted action in the name of said Cheyenne county, in the district court for Douglas county, against said Frank B. Johnson and others, seeking to subject certain property to the payment of said judgment, which action is now pending and ready to be tried:

"And, whereas, some question has been raised, as to the regularity of such employment, of the said Alva L. Timblin, and the county of Cheyenne is desirous of avoiding any possible question, as to the regularity of such employment.

"It is hereby agreed, by and between the said county of Cheyenne and the said Alva L. Timblin, that the said county does hereby employ said Timblin, to proceed with the collection of said judgment and to maintain, in the name of the county of Cheyenne, any actions or proceedings, which may be now pending, and to institute or bring, in the name of the county of Cheyenne, any actions or proceedings, for the collection of said judgment, which, in his opinion, may be advisable for that purpose, and to do all acts and things, in and about the collection of said judgment, which, under the laws of Nebraska, an attorney at law is empowered to do, but no settlement or compromise shall be made, before submitting the proposition to the board of county commissioners of Cheyenne county, Nebraska, for their approval, and the said county of Cheyenne hereby agrees to and with the said Alva L. Timblin that he shall receive for his services, as herein set forth, the one-half of all sums collected upon said judgment, not exceeding two thousand dollars and one-fourth of all sums, so collected, in excess of two thousand dollars; said sums to be in full compensation for the services of said Timblin and any associate or assistant he may retain, on his part.

"And the said Alva L. Timblin hereby agrees to and with the said county of Cheyenne that he will use his best efforts, toward the collection of said judgment and faithfully perform all the duties and obligations resting upon him, under this agreement and the laws of the state of Nebraska, and to accept the compensation herein agreed upon, in full satisfaction and payment of his services and expenses, if any there be, for himself and any assistant he may retain: And further agrees that he will promptly remit, to the treasurer of Cheyenne county, any money that may come into his hands, from the proceeds of said judgment, less such sums, as may be due, to the said Timblin, as his compensation, as herein set forth.

"In witness whereof, the county of Cheyenne has caused this agreement to be signed by its board of county commissioners, and its county seal attached, and attested by its county clerk, at Sidney, Nebraska, and the said Alva L. Timblin has hereunto set his hand. All done, this 18 day of October, 1913 (1912)."

The objections alleged in the petition to the contract are numerous, and which may be summarized as follows: (1) That it gives to Timblin authority to institute actions in the name of the county for the collection of the judgment, which, in his opinion, might be advisable. (2) That by the contract he has authority to settle and compromise the said judgment, after submitting the same to the commissioners of the county. (3) That he is authorized to receive payment or compromise of said judgment, and retain for his services 50 per cent. of the first $ 2,000, and 25 per cent. on all money collected in excess of $ 2,000, the same to be in full compensation for his services and personal expenses and for any associates or assistants, whom he may retain in the collection of the judgment, thus giving him authority to employ and retain, on behalf of the county, other and different counsel, at his option, without the consent of the county, and that he will remit to the county treasurer the proceeds of said judgment, less his compensation, as provided for in the contract. (4) That, in pursuance of said contract Timblin has employed defendant Daniel L. Johnson, an attorney at law, for and on behalf of the county, and who is now appearing for the county in prosecuting a certain action now pending in the district court for Douglas county, the said Daniel L. Johnson not having been employed by the county commissioners of Cheyenne county. (5) That Timblin intends to and will employ other counsel without the consent of the commissioners of Cheyenne county, contrary to law, and prosecute said pending action on behalf of the county. (6) That, at the time of the alleged employment of defendant Timblin, there was and still is a duly elected and acting county attorney of Cheyenne county, who is competent, able and willing to conduct any litigation on behalf of the county, necessary and proper in the collection of said judgment, but that the county commissioners, in violation of the statutes, have refused and neglected to consult him in relation to said collection, and have neglected to instruct him to proceed with the case. (7) That in the employment of Timblin the county commissioners have acted...