OPINION
MAXWELL, CH. J.
In 1881
Ragoss was elected county clerk of Cuming county and held the
office for four years. The county board settled with him from
time to time, and so far as appears he settled in full when
he left the office. Afterwards this action was brought on his
official bond to recover fees collected by him while in
office. The fees claimed are as follows:
SCHEDULE "A."--FEES ENTERED UPON FEE BOOK.
|
1882.
|
For recording deeds
|
$ 656 00
|
For recording mortgages
|
381 05
|
For filing chattel mortgages
|
52 05
|
For recording chattel mortgages
|
5 25
|
For recording miscellaneous instruments
|
60 63
|
For making abstracts
|
108 55
|
1883.
|
For recording deeds
|
660 00
|
For recording mortgages
|
$ 392 10
|
For filing chattel mortgages
|
16 10
|
For recording chattel mortgages
|
4 00
|
For recording mechanics' liens
|
16 50
|
For recording miscellaneous instruments
|
59 25
|
For making abstracts
|
148 75
|
Total entered on fee book
|
$ 2,560 83
|
SCHEDULE "B."--FEES RECEIVED AND NOT
ENTERED
|
ON FEE BOOK.
|
1882.
|
For recording deeds
|
$ 74 25
|
For recording mortgages
|
115 50
|
For filing chattel mortgages
|
25 60
|
For recording chattel mortgages
|
4 00
|
For salary as clerk of board
|
400 00
|
For making assessors' books
|
100 00
|
For extra services
|
82 25
|
EXHIBIT "A."--2.
|
For services as commissioner of insanity
|
30 00
|
For making tax list
|
600 00
|
For making abstracts
|
560 59
|
Fees as clerk of district court
|
61 67
|
1883.
|
For recording deeds
|
119 00
|
For recording mortgages
|
125 50
|
For recording chattel mortgages
|
9 00
|
For filing chattel mortgages
|
60 40
|
For recording mechanics' liens
|
5 50
|
For recording miscellaneous instruments
|
8 25
|
For salary as clerk of board
|
400 00
|
For making assessors' books
|
100 00
|
For fees in state cases
|
142 73
|
For fees as commissioner of insanity
|
6 50
|
For miscellaneous
|
12 75
|
For recording official bonds
|
30 00
|
Searching records in West Point precinct case
|
$ 24 00
|
For making tax list
|
650 00
|
For making abstracts
|
500 00
|
For fees as clerk of district court
|
358 67
|
Total amount of fees received during said
|
years and not entered on fee book
|
$ 4,606 99
|
Adding fees so entered
|
2,560 83
|
Making grand total
|
$ 7,166 99
|
Deducting statutory allowance
|
3,000 00
|
$ 4,166 99
|
To the petition Ragoss filed an answer as follows:
"Now
comes the defendant F. W. Ragoss, and for answer to
plaintiff's petition filed herein says:
"1st.
He admits the allegations contained in the first paragraph of
said petition.
"2d.
He admits that by virtue of his election for the said office
he held and exercised the functions of said office of county
clerk of Cuming county, Nebraska, from the 5th day of
January, 1882, to the 9th day of January, 1884; that during
the said term he received as fees and entered upon the fee
book the sum of $ 2,560.83; that he has not paid into the
treasury of said Cuming county any portion of the fees
received by him during said term.
"3d.
That he denies each and every other allegation in
plaintiff's petition contained, except what is
hereinbefore expressly admitted.
"4th.
That he did report to the said board of county commissioners
all fees received by him, and for which he was properly
chargeable, and made a full, complete, and satisfactory
settlement with said board of county commissioners and
received a full receipt and discharge for all fees received
by him during his said term of office, from which settlement
and allowance no appeal has ever been taken.
"5th. That at the time he entered upon the
duties of said office there was a large amount of work in
said office, and that in conformity to law, and with the
permission, consent, and under the direction of said board of
commissioners he employed a deputy clerk at a salary of $ 700
per annum, and two assistant clerks at $ 600 per annum each
for the time actually employed, and paid to said deputy and
assistant clerks the sum of $ 1,900 per annum, which,
together with the $ 1,500 per annum allowed him by law,
exceeded the amount of fees by him collected and for which he
was properly chargeable.
"6th.
That the employment of said deputy and assistant clerks was
made upon application by him to the county board of county
commissioners of said county, and upon their allowance,
consent, approbation, and authority.
"7th.
That inasmuch as the said plaintiff did not exhibit his said
petition against this defendant within four years from the
time the action accrued on the several items set out in said
petition each and every item thereof is barred by the statute
of limitations, and the plaintiff ought not to be permitted
to prosecute the same.
"Wherefore
defendant prays that he may be dismissed, and go hence
without day and recover his costs in this case most
wrongfully sustained."
The
sureties also filed an answer which need not be noticed.
On the
trial of the cause the court directed the jury to return a
verdict for the county for the sum of $ 2,327.21. The jury
thereupon returned a verdict for the sum named, upon which
judgment was rendered. The items upon which this instruction
is based are as follows:
For making tax list 1882
|
$ 600 00
|
For extra services 1882
|
82 25
|
For making assessors' books 1882
|
100 00
|
For making tax list 1883
|
650 00
|
For making assessors' books 1883
|
100 00
|
For searching records West Point precinct case
|
24 00
|
Ragoss entered upon the duties of his office in
January, 1883. He seems to have been allowed one deputy to be
paid out of the fees of his office. He offered to prove that
a deputy named Hirschman had been appointed at a salary of $
700 per year. This was objected to as "immaterial, not
the best evidence, and incompetent." The objections
were sustained and the evidence excluded. The defendants then
offered "to prove by the witness on the stand and by the
questions asked and ruled out that on or about the 10th day
of January, 1882, F. W. Ragoss, county clerk of Cuming
county, Nebraska, applied to the board of county
commissioners for the privilege to appoint a deputy during
his term of office; that said board of county commissioners
found that it was necessary for him to have a deputy and
empowered said F. W. Ragoss to appoint such deputy for the
term for which he was elected and fixed the salary of such
deputy at $ 700 per year, of which the commissioners made no
record and there is no record of their proceedings; that he
thereupon appointed such deputy for the term of two years at
the salary of $ 700 per year. Plaintiff objects, as being
incompetent, irrelevant, and immaterial, and not the best
evidence. Objections sustained by the court. All of the
defendants at the time severally except." In this the
court clearly erred. The county board had authority to
appoint a deputy, and if one was actually appointed it should
have been shown. In April of that year the county board made
an order as follows:
"APRIL
10, 1882.
"The
board of county commissioners of Cuming county met pursuant
to adjournment. Members present: C. Paul, Chas. Schulth, and
W. W. Cones. The following proceedings were had: Minutes of
last meeting read and approved, etc. In consideration of the
application of the county clerk for assistants, and further
considering that said county clerk and his deputy are
insufficient to overcome their office work, therefore it was
moved, seconded, and carried that the county
clerk be and is hereby empowered to hire one or two
assistants, as he shall deem necessary, besides the deputy,
at $ 600 salary a year; each said assistants are to be paid
by him out of the overplus of fees, respectively all that is
over $ 1,500 a year and deputy's salary; above allowance
shall be counted from the commencement of his official term.
Whereupon board adjourned until April 17, 1882.
"CON.
PAUL.
"CHAS.
SCHULTH.
"W.
W. CONES.
"Attest:
"F.
W. RAGOSS, County Clerk."
The
plaintiff in error also offered the following:
"MR.
CRAWFORD: The defendants offer to prove by the foregoing
questions that the county commissioners made no record of the
application of F. W. Ragoss for the allowance of a deputy or
of their action thereon, and that he did employ such deputy
for the term of two years and pay him the sum of $ 700 per
year. Plaintiff objects, as being incompetent, irrelevant,
and immaterial, and that no proper foundation is laid.
Objections sustained by the court. All of the defendants at
the time severally except.
"MR.
CRAWFORD: Defendants' counsel offers in evidence the
official bond of C. Hirschman, deputy county clerk of Cuming
county, Nebraska, for the term commencing in January, 1882,
and ending in January, 1884, with the approval thereof by the
commissioners of Cuming county as indorsed thereon. Plaintiff
objects, as being immaterial. Objections sustained by the
court. All of the defendants severally except."
Other
testimony of like character was offered and excluded. The
testimony also shows that the clerk made quarterly reports of
his fees. Some of these reports were submitted to the county
attorney and seem to have been approved by him.
Section 42, chapter 28, Compiled Statutes, provides
"that every county * * * clerk * * * of each county
whose fees shall in the aggregate exceed the sum of $ 1,500,
* * * shall pay such excess into the treasury of the
county," etc. "Provided, That if the
duties of any of the officers above named in any county of
this state shall be such as to require one or more assistants
or deputies, then such officers may retain an amount
necessary to pay for such...
