State ex rel. Goodsell v. Tunnicliff

• Decision Date: 23 October 1959
• Docket Number: No. 34615,34615
• Citation: 169 Neb. 128,98 N.W.2d 710
• Parties: STATE of Nebraska ex rel. Don C. GOODSELL and Leota Fern Goodsell, husband and wife; Doyle Horwart and Lois M. Horwart, husband and wife, Appellants, v. George T. TUNNICLIFF, County Treasurer of Garfield County, Nebraska, Appellee.
• Court: Nebraska Supreme Court

Page 710

98 N.W.2d 710

169 Neb. 128

STATE of Nebraska ex rel. Don C. GOODSELL and Leota Fern Goodsell, husband and wife; Doyle Horwart and Lois M. Horwart, husband and wife, Appellants, v. George T. TUNNICLIFF, County Treasurer of Garfield County, Nebraska, Appellee.

No. 34615.

Supreme Court of Nebraska.

Oct. 23, 1959.

Syllabus by the Court

1. The only proper pleadings in a mandamus action, where an alternative writ is issued, are the alternative writ and the return or answer thereto.

2. No reply to the return or answer to an alternative writ of mandamus is permitted, but the allegations thereof are deemed to be denied.

3. A county attorney has no authority to confess judgment or to stipulate to facts requiring an adverse judgment against the county without an appropriate warrant of attorney on behalf of the county.

4. Where the record in an action discloses that a judgment was entered against a county on a stipulation of facts amounting to a confession of judgment under the issues, without a warrant of authority to the county attorney to do so, the judgment is void and subject to collateral attack.

5. A void judgment is not a defense to the issuance of a peremptory writ of mandamus otherwise required.

Beatty, Clarke, Murphy & Morgan, James E. Schneider, Donald W. Pederson, Frank E. Piccolo, Jr., North Platte, for appellants.

Keith J. Kovanda, Burwell, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CARTER, Justice.

This is an action to obtain a writ of mandamus to compel the county treasurer of Garfield County to accept the amounts tendered by relators in payment of the taxes due on certain described real estate owned by them, which amounts were those shown to be due on the records in the office of the county treasurer. The trial court granted an alternative writ of mandamus and the respondent county treasurer filed an answer thereto. Upon a trial of the case the trial court denied the prayer of the relators for a writ of mandamus. The relators appealed.

The record discloses that on January 15, 1959, the relators tendered to the county treasurer the amounts shown to be due on the records of the county treasurer for taxes for the year 1958 on the lands described in the petition. Relators contend that the county treasurer is required to accept such amounts as full payment and to issue a tax receipt therefor. The respondent contends that the amounts shown on the records of the county treasurer are subject to increase because of a judgment of the district court for Garfield County in the case of Cassidy et al. v. County of Garfield et al., and that he would not accept less than the full amount due after the judgment in that case was given effect.

The only proper pleadings in a mandamus action, where an alternative writ is issued, are the writ and return or answer thereto. The return or answer will be deemed to be denied by the relator. State ex rel. City of Crawford v. Bisping, 89 Neb. 100, 130 N.W. 1034. In pleading a judgment it is sufficient to state that such judgment was duly given or made. If such allegation is controverted, as in the instant case, the party pleading it must establish, on the trial, the facts conferring jurisdiction. Section 25-835, R.R.S.1943. The burden of proof in the instant case is therefore upon the respondent to establish the jurisdiction of the court to render the judgment in the Cassidy case. Since the primary issue in the case is the validity of the judgment in the Cassidy case, we shall first dispose of that question.

The Cassidy case was an appeal from an order of the county board of equalization. The case being heard on appeal, the presumption of jurisdiction of the subject matter usually ascribed to courts of general jurisdiction does not apply. Sommerville v. Board of Commissioners of Douglas County, 116 Neb. 282, 216 N.W. 815. The Cassidy case was an appeal by a large number of taxpayers from an order reducing the valuation of certain lands in Garfield County. It was asserted that the order, bearing the date of June 27, 1958, was void for the reason that it was in fact made on July 1, 1958, a day beyond the period in which the county board or equalization was authorized to act.

The transcript filed in the appeal in this case shows that the resolution in question was adopted on June 27, 1958, a day when the county board was authorized to act. There is no evidence offered in the record of this case to the effect that the order of the county board of equalization was actually entered on July 1, 1958. Whether such evidence would be admissible on appeal to impeach the records of the county board of equalization, without first directly attacking it in the tribunal where made, we do not here decide.

The record shows that the county attorney appeared for the county of Garfield and the county board of equalization and entered into a stipulation, the effect of which required the entry of a judgment holding the resolution of June 27, 1958, to be void.

The evidence in the case shows that the judgment was entered on a stipulation between the county attorney and the attorneys for the plaintiffs in that case. The county attorney admitted that a part of the understanding at the time the stipulation was made was that a threatened contempt action against the members of the county board of equalization was to be abandoned. The record does not disclose that the county attorney was authorized by the county or its board of equalization to stipulate for the entry of an adverse judgment.

The records of the county board of equalization show that the order appealed from was entered within the time fixed by statute. No evidence to the...