Shanahan v. City of S. Omaha

• Decision Date: 06 February 1902
• Citation: 89 N.W. 285,2 Neb. [Unof.] 466
• Parties: SHANAHAN v. CITY OF SOUTH OMAHA ET AL. OWENS ET AL. v. CITY OF SOUTH OMAHA ET AL.
• Court: Nebraska Supreme Court

2 Neb. [Unof.] 466

89 N.W. 285

SHANAHAN

v.CITY OF SOUTH OMAHA ET AL.

OWENS ET AL.

v.CITY OF SOUTH OMAHA ET AL.

Supreme Court of Nebraska.

Feb. 6, 1902.

Commissioners' opinion. Department No. 3. Appeal from and error to district court, Douglas county: Dickinson, Judge.

“Not to be officially reported.”

Action by John M. Shanahan, administrator, against the city of South Omaha and others, and by John O. Owens and others against the same defendants. The actions were consolidated, and from the judgment John M. Shanahan brings error, and John M. Shanahan in the second action appeals. Reversed.T. J. Mahoney, for appellant and plaintiff in error.

R. B. Montgomery, for appellees and defendants in error.

AMES, C.

These causes were submitted together, upon oral argument and brief, on behalf of the appellant and plaintiff in error, Shanahan, alone; the city of South Omaha and Owens being in default in this court. In accordance with a rule heretofore announced by this court, the facts disclosed by the record will be taken to be such as they are represented to be by the brief. Their statement is somewhat voluminous, but it cannot be considerably abridged without sacrifice of necessary clearness in the presentation of the questions of law involved.

The two cases were tried together in the court below, and both disposed of on the same evidence. The bills of exceptions are exact duplicates, and the questions involved in both cases are identical; and for these reasons both will be disposed of as one, and in a single opinion.

The petition in case No. 10,898 in the lower court was for a writ of mandamus to compel the levy of a tax by the city of South Omaha upon the taxable property within that city, and the issuance of warrants for the payment of a certain judgment rendered in the district court of Douglas county on the 11th day of April, 1896, in favor of one Catherine Driscoll and against said city, for the sum of $2,500 and costs. The petition in case No. 18,988, in which John O. Owens et al. appear as plaintiffs and appellees, is a petition filed by certain alleged taxpayers to enjoin the levy of the tax, the issuance of warrants, and the payment of the same judgment. The pleadings and records in both cases show that prior to the 11th day of April, 1896, there was pending in the district court of Douglas county an action by Catherine Driscoll against the city of South Omaha to recover some $3,000 damages on account of a personal injury alleged to have been sustained by the reason of the negligence of the city; that on said 11th day of April, 1896, the defendant in said action, the city of South Omaha, by an attorney specially employed by the mayor and city council, and specially authorized by a resolution adopted by the mayor and city council, confessed judgment in said action in favor of the plaintiff therein, Catherine Driscoll, in the sum of $2,500, which confession of judgment was accepted by the plaintiff; that in a very short time after the rendition of said judgment there was filed in said cause an assignment of said judgment from Catherine Driscoll to one Mary G. Madden; that, shortly after, Catherine Driscoll died intestate, and that John M. Shanahan was appointed administrator of the estate of Catherine Driscoll, deceased, and duly qualified as such administrator, and entered upon the duties of his office; that after the appointment of said Shanahan as such administrator he commenced a suit in equity in the district court of Douglas county in his capacity as administrator of the estate of Catherine Driscoll, deceased, in which suit he made the city of South Omaha and Mary G. Madden parties defendant, and in which suit he alleged that the assignment of the judgment against the city of South Omaha from Catherine Driscoll to Mary G. Madden had been obtained by fraud practiced upon said Catherine Driscoll by her attorney in collusion with said Mary G. Madden, and in which suit he prayed that said assignment should be set aside and canceled, and held for naught; that the city should be enjoined from paying said judgment to said Mary G. Madden, but should be adjudged and decreed to pay the full amount of said judgment to said Shanahan, administrator. In this suit service was duly made upon the city of South Omaha and Mary G. Madden. The suit was commenced by the filing of the petition therein on the 8th day of October, A. D. 1896. On the 19th day of October, 1896, summons was returned showing service upon the city of South Omaha by service upon its mayor made on the 15th day of October, 1896, and also personal service upon Mary G. Madden on the same date. That suit remained pending until the 28th day of October, 1897, when a decree was rendered by the district court adjudging and decreeing that the city of South Omaha should pay to the plaintiff in said cause, John M. Shanahan, in his capacity as administrator, one-half of the full amount of the aforesaid judgment in the case of Catherine Driscoll against the city of South Omaha, together with interest thereon. In this equity suit the city of South Omaha made no appearance whatever, although the case was pending upon the docket of the district court for more than a year after service was made upon the city. Mary G. Madden appeared and filed an answer reciting that on or about the 1st of June, 1896, she had sold all her right, title, and interest in the judgment to Thomas Hoctor. Thomas Hoctor appeared and was allowed to be substituted as party defendant in lieu of Mary G. Madden. He alleged the purchase of the judgment from Mary G. Madden, denied all the plaintiff's allegations of fraud in respect to the obtaining of the assignment from Catherine Driscoll, and prayed for a dismissal of plaintiff's petition and for general equitable relief. After the case had been pending for more than a year, and while the city had wholly failed to make any appearance therein, the plaintiff Shanahan, administrator, and the defendant Hoctor, by a stipulation, settled the controversy as between themselves, and agreed that each party should take one-half of the judgment. After this agreement the court entered a default against the city, and rendered its decree adjudging, among other things, as above stated, that the city should pay the plaintiff one half of the full amount of the judgment, together with interest, and the other half to the defendant Thomas Hoctor. From this decree no appeal was ever taken, and no proceedings were brought to vacate it or to attack it in any direct form. Afterwards, and before the making of the regular levy of taxes for the year 1898, Shanahan, administrator, and Hoctor in his individual character, made demand upon the city and its officials to levy the tax necessary to pay the judgment, and to issue warrants to said Shanahan for one-half thereof, and to pay the same. This demand the city authorities failed to comply with, and thereafter, on the 27th day of February, 1899, Shanahan, administrator, commenced in the district court of Douglas county the mandamus proceeding, the record of which is now before this court as case No. 10,989, in which proceeding he pleaded that the city of South Omaha then and at all of the times named in said petition had been a city of the first class, having between 10,000 and 25,000 inhabitants. He also pleaded the official capacity of the mayor and various members of the city council and the city clerk; rendition of the judgment in favor of Catherine Driscoll on the 10th day of April, 1896, for $2,500; the filing of the assignment of the judgment to Mary G. Madden; the bringing and prosecuting...