State ex rel. Coulter v. McFarland

• Decision Date: 21 March 1958
• Docket Number: No. 34249,34249
• Citation: 166 Neb. 242,88 N.W.2d 892
• Parties: The STATE of Nebraska ex rel. Bern R. COULTER, C. Palmer Dunlap and May D. Anderson, Relators, Appellees, v. Robert D. McFARLAND, County Judge, Appellant.
• Court: Nebraska Supreme Court

Page 892

88 N.W.2d 892

166 Neb. 242

The STATE of Nebraska ex rel. Bern R. COULTER, C. Palmer Dunlap and May D. Anderson, Relators, Appellees, v. Robert D. McFARLAND, County Judge, Appellant.

No. 34249.

Supreme Court of Nebraska.

March 21, 1958.

Syllabus by the Court

1. An alias writ of mandamus is a duplicate of the original and a substitute therefor, being issued when the original writ of the same kind has been issued without effect. In such case the command of the alias writ should be the same as the original.

2. The function of a nunc pro tunc order is not to correct some affirmative action of the court which ought to have been taken, but its function is to correct the record which has been made so that it will truly express the action taken but which, through inadvertence or mistake, was not truly recorded.

3. If a matter of public interest in the proper administration of the duties of a public office is involved then a public official occupying such office, who is being mandamused in regard thereto, has such an interest therein that he can appeal therefrom.

4. The foregoing does not apply to matters of a private nature in which the public officer merely seeks to vindicate what he has done in regard thereto.

5. As a general rule, since appellate courts do not sit to give opinions on moot questions or abstract propositions, an appeal or error proceeding will be dismissed where no actual controversy exists between the parties at the time of the hearing. This general rule, however, does not necessarily apply to appeals or error proceedings involving matters of public interest.

Wright, Simmons & Harris, Scottsbluff, for appellant.

Neighbors & Danielson, Scottsbluff, Bern R. Coulter, Bridgeport, James L. Macken, Scottsbluff, for appellees.

Heard before CARTER, MESSMORE, CHAPPELL, WENKE, and BOSLAUGH, JJ.

WENKE, Justice.

This is an appeal from the district court for Morrill County. It involves a mandamus action brought therein by relators Bern R. Coulter, C. Palmer Dunlap, and May D. Anderson against respondent Robert D. McFarland, the then duly elected, qualified, and acting county judge of Morrill County, Nebraska. Thereby relators sought to require respondent to 'sign and file in his office in the matter of the estate of Christina D. Dugger, deceased, the Order Fixing Date for Hearing on Will as hereinabove set forth, said order providing that said petition will be heard on the 13th day of May, 1957, at the hour of nine o'clock A.M., and further commanding said respondent forthwith to sign and file in his office in the matter of the estate of Christina D. Dugger, deceased, the Notice of Hearing, which notice notifies all persons interested in said estate that said hearing will be held in the County Court room, Morrill County, Nebraska, on the 13th day of May, 1957, at the hour of nine o'clock A.M. of said day.'

The factual background out of which this action had its origin is as follows: Christina D. Dugger, a resident of Morrill County, died on September 21, 1956. She was thought to have died intestate so two of her heirs at law filed a petition for the administration of her estate in the county court of Morrill County. They were relator May D. Anderson, a niece, of Chehalis, Washington, and Ellen Boyd Yocum, a niece, of Las Vegas, Nevada. Their petition was filed on September 27, 1956, by relator Bern R. Coulter, an attorney at law. Coulter was appointed and qualified to act as administrator of the estate and letters of administration were issued to him on November 5, 1956. These proceedings were had prior to respondent becoming county judge. After respondent became county judge he found an instrument which had been deposited in his office, which instrument appeared to be a will of Christina D. Dugger, deceased. He found it on April 11, 1957. It was dated May 28, 1913. On the same day respondent called relator Coulter on the telephone and advised him of that fact and later that same day permitted Coulter to take the will to his office to make copies thereof and prepare a petition for its probate. Thereafter, at about 11 a. m. on April 18, 1957, Jack E. Lyman and Marvin L. Holscher, attorneys at law, filed a petition in behalf of Agnes D. Lynn of Coopersville, Michigan, a sister of the deceased, asking for the probate of this will and that the court fix a time and place for a hearing for that purpose and to publish the necessary notice thereof as by law required. This the county court did, fixing the time for hearing at 10 a. m. on May 17, 1957, in his office and caused notice thereof to be published accordingly. On the same day (April 18, 1957) at about 4:30 p. m. relator Coulter left with respondent a petition asking to have the will probated, which was signed by the other two relators, and submitted with it two orders for the respondent to sign and file. The first order was captioned as an 'Order Fixing Date for Hearing on Will' and the second as a 'Notice of Hearing.' The first of these orders set the date for hearing at 9 a. m. on May 13, 1957, in the county courtroom and directed the notice to be published in the Bridgeport News-Blade. The respondent filed the petition but refused to sign the order fixing a time, date, and place for hearing on the application for the allowance of the will and also refused to sign a notice to be published pursuant thereto, entering an order to that effect. This order of refusal was based on the fact that such an order and notice had already been issued. This mandamus action followed immediately, being filed on April 19, 1957.

On April 20, 1957, the district court granted relators the relief they had asked for in the following language: 'IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED BY THE COURT that a Peremptory Writ of Mandamus issue against the respondent, Robert D. McFarland, County Judge, commanding him to forthwith sign and file in the proceedings of the estate of Christina D. Dugger, deceased, the Order Fixing Date of Hearing on Will and to forthwith sign and file in the proceedings of the estate of Christina D. Dugger, deceased, the Notice of Hearing as set forth in the petition filed herein, and that he deliver to relators a copy of said Notice of Hearing for publication. The costs of this action in the sum of $28.25 are taxed against the respondent.'

A writ of mandamus was issued pursuant thereto and served upon respondent. It provided as follows: 'Now, therefore, we command you immediately upon receipt of this writ to sign and file in the proceedings in the matter of the estate of Christina D. Dugger, deceased, the Order Fixing Date of Hearing on Will, which order fixes the date of said hearing on the 13th day of May, 1957, at the hour of nine o'clock A.M., and we command you further to immediately upon receipt of this writ to sign and file the Notice of Hearing in the proceedings in the estate of Christina D. Dugger, deceased, said Notice of Hearing fixing the date of hearing on May 13th, 1957, at the hour of nine o'clock A.M., * * *.'

Respondent did not comply with the command thereof. As a result the relators made application for an alias writ, asking that: '* * * the court enter an order allowing Alias Peremptory Writ of Mandamus requiring the respondent to immediately and forthwith enter an order Nunc Pro Tunc as of April 20, 1957, fixing the date of hearing on the petition of May D. Anderson and C. Palmer Dunlap for the probate of the Will of Christina D. Dugger, deceased, and the appointment of Bern R. Coulter as Administrator thereof with Will Annexed, on the 13th day of May, 1957, at the hour of nine o'clock A.M., and that the respondent be further required to immediately and forthwith sign and file a notice of hearing in said proceedings fixing the date of hearing on May 13, 1957, at the hour of nine o'clock A.M., and to deliver a copy of said notice of hearing to relators for publication.' On April 27, 1957, an alias peremptory writ of mandamus was ordered to be issued. Therein the district court commanded respondent to comply, nunc pro tunc, with the previous writ issued on April 20, 1957. An alias writ was issued. When respondent still refused to comply therewith he was ordered committed to jail until he did so. It was after this order was issued that respondent complied with the command of the writ, doing so involuntarily. After respondent's motion for new trial had been overruled he took this appeal. We shall herein refer to appellant as respondent and to the individual appellees as relators.

It should be noticed that before he involuntarily complied with the command of the writ that respondent unsuccessfully endeavored to get the district court to fix the amount of bond necessary to supersede the court's judgment, the court holding he was not entitled to supersede, and also unsuccessfully endeavored to get the trial court to suspend enforcement of the jail commitment while he appealed to this court.

There is some dispute between the parties, and conflict in the record, as to just what language was used by the trial court in rendering its order directing the issuance of an alias peremptory writ of mandamus. However, we do not think this is important because of what is hereinafter held and because, as stated in 3 C.J.S. Alias p. 514: 'Alias writ. * * * The phrase has been defined as meaning a second writ; a second or further writ which is issued after the first writ has expired, a writ issued where one of the same kind has been issued before in the same cause; a second writ issued when the first has failed its purpose; one which is issued when a former writ has not produced its effect. * * * has been defined as a mere duplicate of an original and a substitute therefor.' And, as stated in Black's Law Dictionary (1891 Ed.), p. 58: 'An alias writ is a second writ issued in the same cause, where a former writ of the same kind had been issued without effect. In such case, the language of the second writ is, 'We command...