Sheibley v. Dixon County
| Decision Date | 06 March 1901 |
| Docket Number | 11,099 |
| Citation | 85 N.W. 399,61 Neb. 409 |
| Parties | T. J. SHEIBLEY v. DIXON COUNTY |
| Court | Nebraska Supreme Court |
ERROR from the district court for Dixon county. Tried below before EVANS, J. Affirmed.
AFFIRMED.
Alfred E. Barnes and William E. Gantt, for plaintiff in error:
Do the pleadings of the defendant, when taken into consideration with those of the plaintiff in the lower court, state a cause of action? The pleadings must be construed together. To admit evidence there must be a statement of ultimate facts conforming to the evidence. Hale v. Walker, 31 Iowa 344; Ockendon v. Barnes, 43 Iowa 615; Williams v. First Presbyterian Society, 1 Ohio St., 478; Clark v Dayton, 6 Neb. 192.
The presumption is that the matter of abstracts was included in the settlement, and can not again be brought up. Smith v Yager, 85 Iowa 706.
McCarthy & Pearson, contra:
It was the duty of the plaintiff in error to report to the board all fees of his office, including fees for making abstracts and taking acknowledgments. State v. Kelly, 30 Neb. 574. If, through fraud or mistake, the plaintiff was allowed to retain fees which he should not have retained, such adjustment is no defense or bar to an action by the court to recover such fees. Hazelet v. Holt County, 51 Neb 716. The rule in the Ragoss Case, 36 Neb. 375, was that "where the county board has before it a matter which it may reject or allow and its action thereon will be final unless appealed from, its order in the premises can not be attacked collaterally." This rule does not apply in the case at bar.
John M. Hench, also for defendant.
This is a proceeding to review a judgment of the district court for Dixon county. The plaintiff below, T. J. Sheibley, had from 1890 to 1896 been county clerk of that county. He filed before the county board a claim for making and correcting the assessors' books for the years 1890, 1891, 1892 and 1893, asserting there was due him for such services, in addition to the salary allowed him by statute, the sum of $ 400. This claim was by the board rejected, and he appealed to the district court. In answer to his petition the defendant county, among other things, filed a counter-claim, alleging that plaintiff, while county clerk aforesaid, made and certified a large number of abstracts, and also took acknowledgments to a large number of deeds and mortgages, and performed other miscellaneous services, and received therefor an amount of money aggregating $ 1,601.50, for all of which he failed to account to the county, although he had retained from other sources sums sufficient to pay his salary and also those of such deputies and employees as he was entitled to, and that there was, therefore, due from him to the county the sum aforesaid, $ 1,601.50, for which it prayed judgment. To this counter-claim plaintiff answered, denying the same, and alleging further that before this action was brought, and after the matters and things alleged in said counter-claim had occurred, plaintiff paid to the county the sum of $ 355.10, which was received in full satisfaction and discharge of the demand alleged in said counter-claim; also that during all his terms of office the fees thereof in excess of the amount allowed by law for salary and for deputy and extra clerk hire amounted to $ 1,715.44, which sum he paid to the county treasurer as required by law, taking his receipt therefor, and made a full settlement with the board, and in consideration of such payment said board released and discharged plaintiff from the claim set out in said counter-claim; that said county employed an expert and appointed a committee and went through all the books and records of his office and made a full and complete report of all fees received, which committee and expert made their report and included in it all the fees received, or that should have been received by him as such clerk, including abstracts and acknowledgments, and, after hearing said report, the board found there was due the county a balance of $ 355.10, which plaintiff paid and was fully released and discharged; and denied that he had failed to account for any abstracts made or acknowledgments taken by him. To this the county replied, among other things, admitting that a committee was appointed to investigate the records of plaintiff's office and that they made a report, but denying all other allegations made by plaintiff relative thereto; and alleged that said committee did not report the amount of fees earned by plaintiff in making and certifying abstracts, or the taking of acknowledgments, but reported that he kept no account of the money received therefor, and that it had no way of determining the amount of such receipts, but that plaintiff had represented to it that he had probably made fifty abstracts which would amount to about $ 125, but defendant alleged that said representation was false and untrue, as plaintiff then well knew; that plaintiff presented no account or claim for the fees received from the sources mentioned in the counter-claim, nor were such fees allowed him by the county board, but that said board was never fully informed of the amount of such fees and that such amount was fraudulently concealed from the board by him; and any settlement with him was purely ministerial in character and only such as is required by law to be made annually, and was made upon his false and fraudulent reports of fees earned. Afterwards, plaintiff dismissed his appeal, and the court, refusing to dismiss the counter-claim, proceeded to try the case without a jury, and rendered judgment against plaintiff in the sum of $ 411.76 on the counter-claim, from which judgment plaintiff prosecutes error.
One of the contentions here is that the county could not present a counter-claim in the case, for the reason it did not do so on the hearing before the county board on the consideration of plaintiff's demand for compensation for correcting the assessors' books. Whether the matters set out in the counter-claim were considered or not before the board the record is silent. For the purposes of this case we will assume that no consideration was given to the facts set out in the counter-claim until the matter reached the district court. It is asserted the county is barred from setting these matters out as a counter-claim; in other words, that the same rule should obtain as to claims pending before the county board as applies to matters in litigation in a lower court, from which an appeal is taken to a higher. In the latter the rule doubtless is that the issue must be the same in both courts. This rule does not apply to claims filed before county boards. While the proceedings had before such boards on claims of that character are doubtless judicial in their nature, that fact does not constitute such board a court, within the meaning of the constitution, as will fully appear from a perusal of the case of Stenberg v. State, 48 Neb. 299, 67 N.W. 190.
It is claimed that defendant is barred from setting up the items relative to the abstracts made and certified and acknowledgments taken by plaintiff, as a counter-claim by reason of the alleged settlement had with the board, wherein after the report of the expert was had and after plaintiff had been examined, the board accepted the sum of $ 355, in full payment of all demands against plaintiff. We do not think so. Settlement was had under section 43, chapter 18, article 1, Compiled Statutes, and in making the adjustment the board performed ministerial functions only. Heald v. Polk County, 46...
To continue reading
Request your trial