Pollock v. Stanton Cnty.

• Decision Date: 19 January 1899
• Parties: POLLOCK v. STANTON COUNTY.
• Court: Nebraska Supreme Court

57 Neb. 399

77 N.W. 1081

POLLOCK

v.STANTON COUNTY.

Supreme Court of Nebraska.

Jan. 19, 1899.

Syllabus by the Court.

1. A petition framed to meet the requirements of section 129 of the Code of Civil Procedure is sufficient, whether the plaintiff be the original owner of the claim declared upon, or another, without any statement of extrinsic facts in regard to the claim of title or ownership.

2. County warrants in suit disclosed that they were for road district funds. They were in terms in favor of private individuals, and, by law, should have been to road supervisors. A petition which contained no statement that they were issued to road supervisors held defective, and open to attack by general demurrer.

Error to district court, Stanton county; Evans, Judge.

Action by John W. Pollock against the county of Stanton. Judgment for defendant, and plaintiff brings error. Affirmed.

Norval, J., dissenting.

J. C. Crawford, for plaintiff in error.

John A. Ehrhardt, for defendant in error.

HARRISON, C. J.

This action was instituted by the plaintiff to recover an amount which he alleged to be his due on eight county warrants, each drawn against the district road fund of a designated road district in Stanton county. The petition was framed to meet the requirements of section 129 of the Code of Civil Procedure, in regard to statement of a cause of action. The first count of the petition was as follows:

“(1) His first cause of action is founded upon a county warrant, of which the following is a copy, with all the indorsements thereon:

+-----------------------------------------+
                ¦‘$10.00.¦State of Nebraska, Levy of 1874.¦
                +-----------------------------------------+
                

Amount levied, $566.00.

Amount issued, $315.75.

Stanton County.

Stanton, Aug. 2, 1875.

Stanton County Treasurer of Said County: Pay to H. Tibler or order Ten & 00/100 dollars, and charge to account of Land Road Fund, Dist.

R. Oberg,

Chairman County Commissioners.

[Seal Nebraska.] No. 5.

No. 34. C. L. Lamb,

County Clerk.'

Indorsed as follows:

‘Presented Aug. 13, 1875, and not paid for want of funds. E. S. Butler, Co. Treasurer.

No. 17 Reg. for payment, Aug. 13th, 1875. E. S. Butler, Trs.

Tax R., $2.39, May 3-, '76, balance.'

(2) There is now due from the defendant to the plaintiff on said warrant the sum of $8.12, which he claims, with interest from May 3, 1876.”

As to each of the other seven warrants declared upon, there were similar allegations, with some differences in matters of which notice need not be taken in this proceeding, except that it appeared that each of two of the warrants had the name of its payee indorsed on the back.

The general allegations of the pleading were as follows: “The defendant refused, and still refuses, to pay said warrants, or any part thereof, although often requested so to do by the plaintiff. (18) The plaintiff further says that the defendant has long since collected the taxes levied for the payment of all the aforesaid warrants, against which levy they were drawn, as shown upon the face thereof, and which several funds and levies aforesaid, as shown upon the face of the warrants (copies of which are set out in the above eight causes of action), were more than sufficient to pay the warrants aforesaid, after paying all prior warrants drawn against said several funds.” There was filed for defendant a general demurrer to the petition, which, on hearing, was sustained; and the plaintiff electing to stand on his petition, and plead no further, judgment was entered for the defendant.

The plaintiff presents the case to this court by a proceeding in error. One objection to the petition was that the instruments therein declared upon were nonnegotiable, and there was no statement in the pleading of the transfer of the title to them to the plaintiff, and no allegation of his ownership. As we have before said, the petition was framed to fulfill as a pleading the provisions of section 129 of the Code of Civil Procedure, which reads as follows: “In an action, counterclaim or set off, founded upon an account, promissory note, bill of exchange, or other instrument, for the unconditional payment of money only, it shall be sufficient for the party to give a copy of the account or instrument, with all credits and indorsements thereon, and to state that there is due to him on such account or instrument, from the adverse party, a specified sum which he claims with interest. When others than the makers of a promissory note, or the acceptors of a bill of exchange, are parties in the action, it shall be necessary to state also the kind of liability of the several parties, and the facts, as they may be, which fix their liability.” This section of our Code is an exact copy of a section of the Code of the state of Ohio, and very similar to one in the New York Code. The provision has been the subject of construction in each of the states to which we have just referred, and it has been determined that a petition drawn as prescribed by the corresponding section of the Code of the state of the decision to the one of our state under consideration, by the original party to the instrument in suit, or its owner by assignment or indorsement, is sufficient, without any averment of extrinsic facts to show the right or title to it. Sargent v. Railroad Co., 32 Ohio St. 449;Myer v. Miller, 2 West. Law Month. 420;Trust Co. v. Goodin, 1 Handy, 31;Prindle v. Caruthers, 15 N. Y. 425;Bank v. Jacobson, 15 Abb. Prac. 218; Swan, Pl. & Prac. 181-189; Kinkead, Code Pl. §§ 296, 301. After an examination of the subject, we feel satisfied to follow the construction given to the section in the states to which we have referred.

A second point raised under the demurrer was that the warrants were drawn for the payment from...