State ex rel. Chem. Nat. Bank v. Sch.-Dist. No. 9, Sherman Co.

• Decision Date: 07 October 1890
• Citation: 30 Neb. 520,46 N.W. 613
• Parties: STATE EX REL, CHEMICAL NAT. BANK v. SCHOOL-DIST. NO. 9, SHERMAN CO.
• Court: Nebraska Supreme Court

30 Neb. 520

46 N.W. 613

STATE EX REL, CHEMICAL NAT. BANK

v.SCHOOL-DIST. NO. 9, SHERMAN CO.

Supreme Court of Nebraska.

Oct. 7, 1890.

Syllabus by the Court.

1. A proceeding by mandamus not being otherwise provided for in the statute of limitations held to fall under section 16 of the Code of Civil Procedure, and is barred at the end of four years.

2. That the statute of limitations, although confined in terms, applies to all claims that may be made the ground of action at law, in whatever form they may be presented.

Mandamus.

Dawes & Foss, for relator.

G. M. Lambertson, for respondents.

COBB, C. J.

The Chemical National Bank of New York City, as relator, filed its petition August 31, 1888, for a peremptory writ of mandamus, to compel the school board of district No. 9, of Sherman county, to report the indebtedness of said district, and the rate and amount of taxes required to pay the same, to the county clerk and the county commissioners, commanding them to levy a tax upon all the taxable property of the citizens of said district, to pay such indebtedness, or to pay one-third thereof the first year ensuing, and an equal amount annually, until the whole be paid, and commanding the county treasurer to collect and retain the same in special fund, and, as often as $100 should be collected, to pay over the same to the clerk of the supreme court, to be by him paid to the relator on account of two certain school-district bonds, lawfully issued by said district, and held by the relator, numbered 5 and 8, respectively, for $500 each, dated July 1, 1874, payable in six years from date, with interest at 10 per cent. per annum, amounting in all to $2,105, for the assessment, collection, and payment of which demand had been duly made, which demand has been neglected and refused by said district board and said county officers; and no part thereof has been paid, except such interest coupons as became due prior to January 1, 1879, which were paid. The defendants appeared, and demurred to the petition: (1) That it fails to state a cause of action; (2) that the cause of action is barred by the statute of limitations, or did not accrue within five years next preceding the filing of the petition. The relator claims that the defendants admit, by demurrer, the facts set up in the petition; that district No. 9 is a duly-organized school-district; that it borrowed by legal methods the money represented by the bonds Nos. 5 and 8, used it for school purposes within and for the district, and paid the interest due prior to January 1, 1889. It contends that the demurrer should be overruled, because “there is no doubtful question of the statute of limitations not running against this cause of action in any former decisions of this court, as claimed by defendants.” That the distinction between a school-district warrant, for money due, and a school-district bond, negotiated for the loan of money, is plain and evident, and ought not to be subject to the operation of the statute of limitations; for the reason that the warrant can only be drawn upon funds already provided, and remaining in the treasury, and the bonds are issued as the obligation of the district to pay that amount, at a future day, on the public faith of the officers, and upon the presumption that they will do their duty in levying and collecting taxes, in order to pay the bonds according to their legal purport. It contends that under sections 645-648, of the Code of Civil Procedure, mandamus should always issue where the right to require performance of the act is clear, and where no other specific remedy is provided; and contends further that it is an established doctrine in the construction of statutes of limitation that cases within the reason, and not within the words, of the statute, as in this instance, are not barred, but may be considered as omitted cases in the act, the legislature not deeming it proper to limit them.

In support of the application, the relator's counsel cites the decisions of the supreme courts in several states. In Smith v. Lockwood, 7 Wend. 241, it was held in the state of New York, in the year 1831, “that the statute of limitation is not a bar to every action of debt, but only to those brought for arrearages of rent, or founded upon any contract without specialty; and that the settled construction of the statute is that it applies solely to actions of debt founded upon contracts in fact, as distinguished from those arising from construction of law.” In Bass v. Bass, 6 Pick. 362, it was held in Massachusetts, in 1828, in an action between merchants, on an account for goods sold and delivered, that, although in a case in New York (Coster v. Murray, 5 Johns. Ch. 522) Chancellor KENT had reviewed the authorities, and had come to the conclusion that merchants' accounts are within the statute, where there is no item within six years, yet in a case reported in 5 Cranch, 15, (Mandeville v. Wilson,) the court maintained the contrary doctrine; and as the language of the Massachusetts statute is clear, the court will ground its decisionupon it. The words of the statute are: “All actions of account, and upon the case, other than such accounts as concern the trade of merchandise, between merchant and merchant, their factors or servants,” shall be commenced within the time limited. Such accounts are not within the statute. This is the most natural construction, and the only one the words of the statute will allow. In Jordan v. Robinson, 15 Me. 167, the suit was an action of debt on a judgment of the supreme court of New Brunswick, British province, rendered in 1818, to which was pleaded the general issue and the statute of limitations. The court held “that the obligation is not a debt grounded upon any lending or contract within the meaning of the statute, but looking to the consideration of the judgment we find it founded upon an express contract, but one excepted from the operation of the statute, being rendered upon a note in writing for the payment of money, attested by a witness.” Judgment was for the plaintiff in the year 1838. In Keith v. Estill, 9 Port. (Ala.) 669, the action was brought on a judgment of the county court of Franklin county, Tenn., rendered in 1820. The statute of limitations was pleaded, the plaintiff demurred, and the court overruled the demurrer. The supreme court, in 1840, (ORMOND, J.,) said: “I should be willing to rest the decision on the construction of our statute that the framers of the act by the word, ‘contract,’ did not contemplate judgments, and that it is a casus omissus. The contrary opinion has only been supported on the ground that a foreign judgment is merely prima facie evidence of a debt; but the judgment of our co-states, rendered on service of process, are conclusive evidence of the debt when sought to be enforced in any other state.” From this opinion, GOLDTHWAITE, one of the justices, dissented, and said, in his judgment, the plea interposed was a complete bar to the action. In Bedell v. Janney, 4 Gilman, 193, the supreme court of Illinois, in the year 1847, held that it was then a well-established doctrine that cases within the reason, but not within the words, of the statute of limitations, are not barred, but may be considered as omitted cases, which the legislature had not deemed proper to limit. In Garland v. Scott, 15 La. Ann. 143, it was held, by the supreme court of that state, in 1860, that “statutes of prescription and limitation could not be extended from one action to another, nor to analogous cases, beyond the strict letter of the law.” It will not be disputed that anciently, from 1550 to 1800, and subsequently, the views and arguments offered by the relator's counsel in this case, and the precedents cited by him in their own day, were the accepted rule and authority as to the significance and force of the writ of mandamus. But those days are past, and the economy of the law has...