State ex rel. McDonald, Co. Atty v. Dyson, No. 21881.

CourtSupreme Court of Nebraska
Writing for the CourtLESLIE
Citation183 N.W. 298,106 Neb. 277
Decision Date06 June 1921
Docket NumberNo. 21881.
PartiesSTATE EX REL. MCDONALD, CO. ATTY., ET AL. v. DYSON, SHERIFF.

106 Neb. 277
183 N.W. 298

STATE EX REL. MCDONALD, CO. ATTY., ET AL.
v.
DYSON, SHERIFF.

No. 21881.

Supreme Court of Nebraska.

June 6, 1921.



Syllabus by the Court.

In an action brought for the removal of a sheriff under the provisions of section 50, c. 187, Laws 1917, for failure to do his duty in the enforcement of the provisions of said law, satisfactory evidence that the respondent himself gave away or sold intoxicating liquor is sufficient to sustain an allegation in a complaint charging that the respondent permitted intoxicating liquors to be given away in his presence and with his knowledge.

An action brought under the provisions of section 50, c. 187, Laws 1917, for the removal of a sheriff for failure to do his duty in the enforcement of said act, is a civil proceeding, and the respondent is required to file an answer to the petition or complaint as in any other civil action. If the respondent fails to file an answer questioning the constitutionality of said act, or fails to tender that issue by demurrer, motion, or objection to the offer of testimony in the trial court before judgment, and said cause is tried in the lower court upon the theory that respondent filed a general denial, or entered a plea of not guilty, this court will not consider the question of the constitutionality of said act if presented on appeal.


Appeal from District Court, Morrill County; Hobart, Judge.

Action by the State on the relation of Kenneth W. McDonald, County Attorney, and another, against William I. Dyson, Sheriff. From an adverse judgment, and a denial of a new trial, defendant appeals. Affirmed.

[183 N.W. 298]

R. J. Greene and H. C. Wilson, both of Lincoln, for appellant.

Clarence A. Davis, Atty. Gen., and K. W. McDonald, of Bridgeport, for appellees.


Heard before MORRISSEY, C. J., FLANSBURG and ROSE, JJ., and BEGLEY and LESLIE, District Judges.

LESLIE, District Judge.

This is an action brought in Morrill county by the State ex rel. Kenneth W. McDonald, County Attorney, and Clarence A. Davis, Attorney General, relators, against William I. Dyson, Sheriff, under the provisions of chapter 187, Laws 1917.

A petition was filed in the district court on the 14th day of December, 1920, which broadly charges the respondent with failing and refusing to enforce the laws of the state of Nebraska generally, and with willfully neglecting, failing and refusing to perform his duty as sheriff in the enforcement of the provisions of chapter 187, Laws 1917, and of habitual drunkenness, and willful neglect of duty in failing to faithfully perform numerous other duties devolving upon him as sheriff during his term of office.

A special appearance was filed by the respondent, which was overruled by the court, and, following this, a motion was filed by the respondent to require the relators to make their petition more definite, which was overruled. No answer was filed by the respondent, but the case appears to have been tried upon the theory that the respondent filed a general denial. At the conclusion of the evidence and argument of counsel the court found that the allegations of relators' petition relative to respondent giving away and receiving intoxicating liquors were sustained by the evidence, but that the allegations charging respondent with selling liquors were not sustained by the evidence. The court entered a judgment finding the respondent guilty of giving away and receiving intoxicating liquors contrary to law and ousting

[183 N.W. 299]

him from office as sheriff of Morrill county. From this judgment and order overruling respondent's motion for a new trial the respondent has appealed to this court. Numerous assignments of error are...

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3 practice notes
  • State ex Inf. McKittrick v. Williams, No. 36718.
    • United States
    • United States State Supreme Court of Missouri
    • November 9, 1940
    ...Barbee v. McMurphy, 149 Va. 406, 141 S.W. 237; State v. Teeters, 112 Kan. 70, 209 Pac. 818; Reeves v. Texas, 258 S.W. 577; State v. Dyson, 106 Neb. 277, 183 N.W. 298; Freas v. State, 109 Okla. 205, 235 Pac. 227; Holliday v. Fields, 210 Ky. 179, 275 S.W. 642; In re Sulzman, 125 Ohio St. 594,......
  • State v. Schwade, No. 35765
    • United States
    • Supreme Court of Nebraska
    • November 20, 1964
    ...of the statute.' See, also, State ex rel. Sorensen v. Knudtsen, 121 Neb. 270, 236 N.W. 696; State ex rel. McDonald v. Dyson, 106 Neb. 277, 183 N.W. 298; Johnson v. Richards, 155 Neb. 552, 52 N.W.2d 737; Weekes v. Rumbaugh, 144 Neb. 103, 12 N.W.2d 636, 150 A.L.R. 129; Howarth v. Becker, 128 ......
  • Sallack v. Freeman, No. 21653.
    • United States
    • Supreme Court of Nebraska
    • June 6, 1921
    ...the statute a strict construction. It said: “A contract by which one employs an agent to assist him in making an exchange of properties [183 N.W. 298]is not governed by the provisions of section 2628, Rev. St. 1913. The purpose of that section was to protect landowners from fictitious claim......
3 cases
  • State ex Inf. McKittrick v. Williams, No. 36718.
    • United States
    • United States State Supreme Court of Missouri
    • November 9, 1940
    ...Barbee v. McMurphy, 149 Va. 406, 141 S.W. 237; State v. Teeters, 112 Kan. 70, 209 Pac. 818; Reeves v. Texas, 258 S.W. 577; State v. Dyson, 106 Neb. 277, 183 N.W. 298; Freas v. State, 109 Okla. 205, 235 Pac. 227; Holliday v. Fields, 210 Ky. 179, 275 S.W. 642; In re Sulzman, 125 Ohio St. 594,......
  • State v. Schwade, No. 35765
    • United States
    • Supreme Court of Nebraska
    • November 20, 1964
    ...of the statute.' See, also, State ex rel. Sorensen v. Knudtsen, 121 Neb. 270, 236 N.W. 696; State ex rel. McDonald v. Dyson, 106 Neb. 277, 183 N.W. 298; Johnson v. Richards, 155 Neb. 552, 52 N.W.2d 737; Weekes v. Rumbaugh, 144 Neb. 103, 12 N.W.2d 636, 150 A.L.R. 129; Howarth v. Becker, 128 ......
  • Sallack v. Freeman, No. 21653.
    • United States
    • Supreme Court of Nebraska
    • June 6, 1921
    ...the statute a strict construction. It said: “A contract by which one employs an agent to assist him in making an exchange of properties [183 N.W. 298]is not governed by the provisions of section 2628, Rev. St. 1913. The purpose of that section was to protect landowners from fictitious claim......

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