Sarpy County v. Gasper (Jasper)
| Decision Date | 12 December 1947 |
| Docket Number | 32271. |
| Parties | SARPY COUNTY v. GASPER (JASPER) et al. (STRAWN et al., Interveners). |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Only when provided for by statute can an attorney's fee be allowed and taxed as costs.
2. When provided for by statute the fee is payable to the party the statute designates.
3. The county board has exclusive original jurisdiction in the examination and allowance of claims against the county arising ex contractu.
4. The jurisdiction of the district court as to claims against a county arising on contract is appellate only.
5. A judgment of the district court entered in an original action in that court as to claims against a county for legal services rendered the county is void for want of jurisdiction.
6. Solomon v. A. W. Farney, Inc., 136 Neb. 338, 286 N.W. 254 overruled in part.
Brown Crossman, West, Barton & Quinlan, of Omaha, for interveners-appellants.
Orville Entenman, of Papillion, for Sarpy County, appellee.
William R. Patrick, of Papillion, and Bernard A. Martin, of Omaha for interveners-appellees.
Heard before SIMMONS, C. J., PAINE, MESSMORE, YEAGER, CHAPPELL, and WENKE JJ., and KROGER, District Judge.
Appellants, Joseph E. Strawn and Christine S. Marth, executrix of the will of Ralph J. Nickerson, deceased, filed a petition of intervention in the above entitled action, to which demurrers of the County of Sarpy, plaintiff and appellee, and School District No. 1 of Sarpy County, Nebraska, and city of Bellevue, Nebraska, interveners and appellees, were sustained, Interveners Strawn and Marth elected to stand on their petition and the trial court dismissed the same. From this ruling this appeal was taken.
The facts are not in dispute. In May 1940 a petition by more than ten resident freeholders of Sarpy County, Nebraska, was filed with the county clerk of said county, requesting the board of county commissioners to employ Joseph E. Strawn and Ralph J. Nickerson, special attorneys, to file and prosecute to final determination all actions to foreclose certain tax liens and tax sale certificates.
Pursuant to this petition, and on the same date, the board of county commissioners passed a resolution employing Ralph J. Nickerson and Joseph E. Strawn, special attorneys, and in said resolution directed them 'to proceed immediately to bring such actions for the foreclosure of taxes as this Board may direct, and their compensation to be the statutory fee of 10% to be added in each and every case.' As such special attorneys, Strawn and Nickerson prepared and filed 12 separate actions, each containing a number of causes of action, for the foreclosure of tax liens. In all causes of action that went to decree, the court, after finding the amount due on the tax lien, with some variation in wording, found that the actions had been authorized by the board of county commissioners and that Nickerson and Strawn had been appointed by the board of county commissioners to prosecute said action for the plaintiff county, under an agreement between the board and said attorneys that they be paid the ten percent attorney's fee authorized by statute, and found that the fee should be allowed the plaintiffs and made a part of the judgment entered in each cause of action. And again, with some variation in wording, adjudged and decreed that there was due the plaintiff county the amounts set forth for general taxes and special assessments, 'and an attorney fee to Ralph J. Nickerson and Jos. E. Strawn as attorneys for plaintiff in the sum of ten per cent thereof to be taxed as costs * * *.'
Sales were had and confirmed, and the ten percent attorney's fees that were taxed as costs are held by the clerk of the district court for Sarpy County, or by the county treasurer of said county, in a special fund.
Appellants filed their petition of intervention in each of the 12 foreclosure actions, seeking payment to them of the attorney's fees that had been taxed as costs. The ruling of the trial court in three of these actions has been brought here for review and the cases were consolidated for briefing and argument.
It is the contention of the appellants that by reason of the contract with the board of county commissioners and the finding and judgment of the trial court, the ten percent charged in each cause of action as attorney's fees became the...
To continue reading
Request your trial