Red Willow County v. Smith

• Decision Date: 21 January 1903
• Docket Number: 12,404
• Citation: 93 N.W. 151,67 Neb. 213
• Parties: RED WILLOW COUNTY v. ISAAC M. SMITH
• Court: Nebraska Supreme Court

93 N.W. 151

67 Neb. 213

RED WILLOW COUNTY v. ISAAC M. SMITH

No. 12,404

Supreme Court of Nebraska

January 21, 1903

ERROR from the district court for Red Willow county. Claim against a county for fees as sheriff, on distress warrants, where no collection has been made. Tried below before NORRIS, J Judgment on demurrer for plaintiff. Reversed.

REVERSED AND REMANDED.

W. R Starr, for plaintiff in error.

Webster S. Morlan, contra.

KIRKPATRICK C. HASTINGS and LOBINGIER, CC. concur.

OPINION

KIRKPATRICK, C.

This is an action brought by defendant in error against plaintiff in error, Red Willow county. The facts sufficiently appear from the petition filed in the district court, the material portions of which are as follows: "On [and] between the 2nd day of February, 1899, and the 4th day of January, 1900, the plaintiff was the duly appointed, qualified and acting deputy sheriff of Red Willow county, Nebraska; that on and between said 2nd day of February, 1899, and the 4th day of January, 1900, there were issued by the county treasurer of said Red Willow county two hundred distress warrants for delinquent taxes; that said distress warrants were, by said county treasurer, duly delivered to the plaintiff as such deputy sheriff for collection; that upon receiving said distress warrants the plaintiff made diligent search for property whereon to levy the same, but was unable to find any property in said county subject to levy under said distress warrants. Thereupon plaintiff indorsed upon each of said distress warrants his return that he was unable to collect the same for want of property upon which to levy, and returned the same to the county treasurer of said county; that at the time of making the return of said warrants as aforesaid, the plaintiff also indorsed upon each of them his fees for making said searches and returns amounting to the sum of fifty cents on each warrant." In addition to the foregoing, the petitioner recited the filing of the claim before the board of county commissioners of the county, and their rejection and disallowance of the claim; a copy of the claim being attached to and made a part of the petition. To this petition plaintiff in error filed a general demurrer, which was by the trial court overruled. Plaintiff in error declining further to plead, and electing to stand upon its demurrer, judgment was entered against the county in favor of defendant in error in the sum of $ 100 and costs, being the amount prayed for in the petition. The one question presented in this court is the correctness of the action of the trial court in overruling the demurrer. To determine this question the county prosecutes error to this court.

It is well settled in this state that an officer can charge only such fees for the performance of services as are allowed by law, and that services performed by an officer for which the statute does not expressly authorize a charge must be performed gratuitously. Stoner v. Keith County, 48 Neb. 279, 67 N.W. 311; State v....