State ex rel. Brown Cnty. v. Boyd

• Decision Date: 07 October 1896
• Citation: 68 N.W. 510,49 Neb. 303
• Parties: STATE EX REL. BROWN COUNTY v. BOYD.
• Court: Nebraska Supreme Court

49 Neb. 303

68 N.W. 510

STATE EX REL. BROWN COUNTY

v.BOYD.

Supreme Court of Nebraska.

Oct. 7, 1896.

Syllabus by the Court.

1. A mandamus will issue, even after the expiration of the term of office of a county clerk, to compel him to perform the duty of reporting all the fees of his office, and also to pay into the treasury of the county any excess above the amount he was entitled by law to retain.

2. “A proceeding by mandamus is barred by the statute of limitations at the expiration of four years from the time the right to the writ accrued.” State v. King, 51 N. W. 754, 34 Neb. 196.

3. The requirements of the law in regard to a fee book to be kept by the county clerk, and the reports of his fees to be regularly made to the county boards, combined with the provisions of the statute in respect to the amount to be charged in each instance as a fee, and the fact that what has been done by him for which a fee should be charged and collected appeared of record, are sufficient to charge the board with notice of any discrepancy between the amounts of the fees of the officer reported by him as collected and the true amounts. From which it follows that the right of action to enforce the duty of making a true report for any current year, and to pay any excess of fees into the county treasury, would accrue at the time the report was due, or made in an incomplete or defective form; and this would be the rule if the rendering of an incomplete or false report be considered in the nature of a fraud on the board to which it must be presented.

4. “An act for relief on the ground of fraud must be commenced at any time within four years after the discovery of the facts constituting the fraud, or of facts sufficient to put a person of ordinary intelligence and prudence on an inquiry which, if pursued, would lead to such discovery.” Gillespie v. Cooper, 55 N. W. 305, 36 Neb. 775.

Application by the state, on relation of the county commissioners of Brown county, against C. F. Boyd, for a writ of mandamus. Denied.J. S. Davisson, P. D. McAndrew, and C. H. Bane, for relators.

L. K. Alder and Munger & Courtright, for respondent.

HARRISON, J.

In this, an application to this court for a writ of mandamus, the prayer of the petition filed reads as follows: “Wherefore your relators, as the agents of the county of Brown, pray that a peremptory writ of mandamus issue to C. F. Boyd, as county clerk of Brown county, Nebraska, commandinghim, the said respondent, for the years 1888 and 1889, to forthwith report, and enter upon the respective fee books of said county, all the fees so earned by him, the said C. F. Boyd, as county clerk, and ex officio clerk of the district court of Brown county, Nebraska, for the years 1888 and 1889, and ending on January 7, 1890, including the fees not heretofore reported by said respondent, as set out in this petition, and that the said respondent be required and commanded to pay over the excess not heretofore reported by him, viz. fourteen hundred and twenty-two and 53/100 ($1,422.53) dollars, into the treasury of Brown county, and for the costs of this action.” The case was submitted on the following motion and stipulation:

“Comes now the respondent, and moves the court for judgment dismissing this action, and for costs, and, for reasons therefor, presents that the pleadings and stipulation of facts filed herein show the following: (1) That this action is barred by the statute of limitations; (2) that respondent has duly entered on his fee book, and duly accounted for, each and every item of fees actually received or collected by him; (3) that all matters in controversy were each finally adjudicated before the board of county commissioners of Brown county, and no appeal taken therefrom.”

“Among the defenses claimed by respondent to this action, he presents most prominently three, as follows: First, that the statute of limitations has run against this action; second, a final adjudication before the board of county commissioners; third, the petition charges the respondent with all the fees earned, while respondent contends that he is only bound to account for those actually received. Any one of these defenses, if decided by the court in favor of respondent, will be decisive, practically speaking, of the entire action; and, for the purposes of having them passed upon by the court at the present time, the parties hereto stipulate as follows: (1) The pleadings filed in this case are made a part of this stipulation, and the facts admitted by said pleadings are to be considered in connection with this stipulation of facts. (2) It is admitted that respondent was duly elected, qualified, and acting county clerk, and ex officio clerk of the district court, and for the two-year term commencing January 7, 1888, and ending January 7, 1890. (3) That no cause of action exists against respondent for the second year of this term, being from January 7, 1889, to January 7, 1890, for the reason that he did not receive or earn the minimum fees allowed him for said year. (4) It is admitted that during the year 1891 plaintiff employed a person (claimed by relators and denied by respondent to have been an expert) to examine the records of the respondent's office for said official year of 1888; that said examiner made a report in July, 1891, showing a shortage in accounts of respondent for said year in the sum of $861.09; that said estimate of the shortage was based entirely on what the records show to have been earned, as figured upon the basis of charges, regardless of what was actually charged and collected. (5) It is admitted that respondent faithfully accounted for all the fees entered upon his fee book. (6) It is admitted that respondent at all times kept a fee book, and that said fee book, together with all other records of said office, was at all times open to the inspection of the board of county commissioners of Brown county, and all other persons whomsoever. (7) It is admitted that at the end of each quarter of each official year the respondent presented a quarterly report of his fees to the board of county commissioners of said county, each of which reports corresponded with his fee book, and that each of said reports was by the said board of county commissioners, within a short time thereafter, examined and approved. (8) It is admitted: That on January 10, 1889, respondent made an annual report for said official year of 1888 to the board of county commissioners of said county, which report was as follows:

+-----------------------------------------------+
                ¦Receipts first quarter     ¦$ 441 70 ¦         ¦
                +---------------------------+---------+---------¦
                ¦Receipts second quarter    ¦353 00   ¦         ¦
                +---------------------------+---------+---------¦
                ¦Receipts third quarter     ¦479 95   ¦         ¦
                +---------------------------+---------+---------¦
                ¦Receipts fourth quarter    ¦409 35   ¦         ¦
                +---------------------------+---------+---------¦
                ¦Receipts for abstracts     ¦162 44   ¦         ¦
                +---------------------------+---------+---------¦
                ¦Salary as clerk of board   ¦400 00   ¦         ¦
                +-------------------------------------+---------¦
                ¦Making total receipts for the year   ¦$2,246 44¦
                +-------------------------------------+---------¦
                ¦Salary as register of deeds¦$1,500 00¦         ¦
                +---------------------------+---------+---------¦
                ¦Making tax list 1888       ¦341 70   ¦         ¦
                +---------------------------+---------+---------¦
                ¦Clerk hire                 ¦665 35   ¦$2,507 05¦
                +-------------------------------------+---------¦
                ¦Balance due for making tax lists     ¦$ 260 61 ¦

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