Perkins County v. Keith County

• Decision Date: 22 March 1899
• Docket Number: 8833
• Citation: 78 N.W. 630,58 Neb. 323
• Parties: PERKINS COUNTY v. KEITH COUNTY
• Court: Nebraska Supreme Court

78 N.W. 630

58 Neb. 323

PERKINS COUNTY v. KEITH COUNTY

No. 8833

Supreme Court of Nebraska

March 22, 1899

ERROR from the district court of Perkins county. Tried below before GRIMES, J. Affirmed.

AFFIRMED.

George H. Hastings, B. F. Hastings, C. P. Logan, and H. E. Goodall for plaintiff in error.

Albert Muldoon, Duffie & Van Dusen, Robert Ryan, and J. W. McSay contra.

SULLIVAN J. HARRISON, C. J., dissents.

OPINION

SULLIVAN, J.

The plaintiff the county of Keith, in its petition, alleged:

"1. That it was duly organized as a county in the year 1883; that its territory consisted of the territory now included in the county of Keith and the county of Perkins, the plaintiff and defendant in this action; that the county boundaries of the plaintiff county continued as above until on or about January 27, 1888, when the defendant county was duly organized and the officers of the defendant county assumed charge of its county government.

"2. That in accordance with section 16 of chapter 18 of the Compiled Statutes of Nebraska of 1897 the county boards of the said counties of Keith and Perkins proceeded to divide all the property, both real and personal, and all the debts and liabilities and choses in action of every kind belonging to county of Keith, the county from which the county of Perkins was formed, and it was found by the said boards upon said division that there was due and owing to the plaintiff from the defendant the sum of twenty-five hundred and four and 65-100 dollars.

"3. That the county board of the defendant accepted the said amount as the amount owing plaintiff by defendant on account of the division above stated, and caused their acceptance to be spread upon their records in January, 1889.

"4. That the county board of the plaintiff accepted the said amount owing plaintiff by defendant on account of the division of property and liabilities as above stated.

"5. That said amount was accepted by the county boards of both the plaintiff and defendant counties as the amount justly owing plaintiff by defendant after charging defendant with its legal proportion of the liabilities of the plaintiff and crediting the defendant with its legal proportion of the property and choses in action of the plaintiff.

"6. That the defendant refuses to pay the said amount, or any part thereof, although often requested to do so.

"7. That no part of said amount has been paid, and there is now due the plaintiff from the defendant the sum of twenty-five hundred and four and 65-100 dollars ($ 2,504.65), together with interest on the same at the rate of seven per cent per annum from the 1st day of February, 1889."

Both by demurrer and answer the defendant the county of Perkins challenged the jurisdiction of the court to hear and determine the cause. The court held that it possessed jurisdiction, and, after hearing the evidence, found the issues in favor of the plaintiff and rendered judgment accordingly. The defendant prosecutes error.

It is perfectly plain that the petition was framed on the theory that the commissioners of the two counties had met to effect a division of their property and liabilities, and had, at such meeting, agreed that the defendant was indebted to the plaintiff in the sum of $ 2,504.65. The evidence affords an inference that the facts alleged were true. An admission of the indebtedness claimed is found in the record of the proceedings of the county board of Perkins county; and the witness Sheridan testified that the demand in suit was a balance agreed to at a conference between representatives of Keith county and the commissioners of Perkins county. Presumably the representatives referred to by the witness were the plaintiff's commissioners, who alone had authority to treat with commissioners of Perkins county for the purpose of adjusting the difference between the two counties.

But the serious question in the case--the one to which attention is chiefly directed in the briefs of counsel--relates to the authority of the district court to entertain the action. On behalf of the defendant it is earnestly insisted that the county board of Perkins county is given exclusive original jurisdiction of the class of claims to which the one in controversy belongs. Section 23, chapter 18, Compiled Statutes 1897, confers on the county board of each county power "to examine and settle...