OPINION
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, commanding
him, 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 the duly elected,
qualified, and acting county clerk and ex officio
clerk of the district court 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 his 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
his 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
|
"That
said report was on said day examined by the board of county
commissioners, in regular session assembled, and by them
approved; that on said day respondent filed a bill for the
balance due him under said report of $ 260.61, which bill
was, on January 22, 1889, by the county commissioners of said
Brown county duly audited and allowed to respondent, and a
warrant ordered drawn on the treasurer of said county for
said sum in payment of said balance due to
respondent, and said warrant was so drawn and by the
treasurer of said county paid to respondent; that no appeal
from the allowance of said bill or from the allowance of said
annual report, or from the allowance of any quarterly report
for any quarter of said year, was ever taken.
"9.
The respondent admits that the relators and their
predecessors in office did not actually know until July,
1891, that respondent was only entering on his fee book the
items of fees actually received, and that they obtained this
information in July, 1891, from the report of the expert
above mentioned. But it is admitted by both parties hereto
that relators and their predecessors in office had the same
opportunities for examination of the records by themselves,
or by any one employed by them, at all times theretofore, and
that respondent did not misrepresent or conceal such
custom.
"10.
It is admitted that respondent entered on his fee book and
duly accounted for each and every item of fees actually
collected or received for the official year of 1888.
"11.
This stipulation is entered into for the sole and only
purpose of forming a basis for a motion for judgment on the
pleadings and this stipulation, to be filed by the
respondent. If the court decides any one of the three
propositions of law above mentioned in favor of respondent,
the writ of mandamus is to be denied and cause
dismissed at the cost of relators. If the court overrules
said motion, the cause shall proceed to trial, and neither
party shall be bound by any statement or admission contained
in this stipulation."
The
first question presented by this stipulation and motion is
whether the cause of action is barred by the statute of
limitations. It was stipulated that the respondent did not
receive or earn, during the second year of his term of
office, the minimum amount of fees which he would have been
entitled by law to retain. (See paragraph 3, copy of
stipulation herein.) It is the account of the fees of
respondent as county clerk during the year 1888, and the acts and omissions of the parties concerned, which
we are now to examine and consider, and determine whether the
present action arose in favor of the relators against
respondent, and if so, when it accrued. A mandamus
may be...
