State ex rel. Pomerene & Cooper v. Sabin
| Decision Date | 06 March 1894 |
| Docket Number | 4811 |
| Citation | 58 N.W. 178,39 Neb. 570 |
| Parties | STATE OF NEBRASKA, EX REL. POMERENE & COOPER, v. D. G. SABIN, TREASURER |
| Court | Nebraska Supreme Court |
ORIGINAL application for mandamus.
WRIT DENIED.
Lamb Ricketts & Wilson, for relators, cited: State v Gandy, 12 Neb. 232; State v. Scott, 15 Neb 147; State v. Leidtke, 12 Neb. 171; State v. Roderick, 23 Neb. 505; Everts District Township of Rose Grove, 77 Iowa 37; Capital Bank of St. Paul v. School District No. 85, 42 N.W. [Dak.], 774; Robbins v. School District, 10 Minn. 268; Maher v. State, 32 Neb. 369.
Steele Bros., contra, cited: School District v. Stough, 4 Neb. 357; Nevil v. Clifford, 24 N.W. [Wis.], 65; Gehling v. School District, 10 Neb. 239.
A. J. Evans, also for respondent.
This proceeding was instituted June 30, 1891, to compel payment by the defendant of an order, of which the following is a copy:
The relators in their petition averred that by the terms of the instrument aforesaid it matured on the 1st day of March, 1891, and that the said order, at the time of the commencement of this proceeding, was the property of the relators, whose demand of payment had been refused by the defendant, though the said defendant had in his hands sufficient funds with which to make full payment of the same and could properly have done so. There was, soon after this action was begun, a reference thereof and quite a large amount of evidence was taken by the referee in support of the contentions of each party, for which reason it is deemed but fair to decide this controversy, notwithstanding it is one which should not have been brought in this court in the first instance. The order copied above was of date September 2, 1889, due March 1, 1891, for $ 500, and, by the terms of the instrument itself, this sum drew interest at the rate of seven per cent per annum. This was, therefore, not a mere order drawn against some fund specified and in existence; it was rather an order payable out of a fund entirely to be provided for in the future.
In School District No. 2, Dixon County, v. Stough, 4 Neb. 357, LAKE, J., delivering the opinion of this court, said: The rule stated is as applicable to orders of the class under consideration as to those referred to in the above opinion; i. e., those for the erection of a school house. The contract for supplying the school building at David City with steam heating apparatus was dated July 4, 1889, and required that the work stipulated should be completed by September 2 immediately following. In payment three so-called orders were to be issued for the sum of $ 500 each, due respectively May 1, September 1, 1890, and March 1, 1891. This was directly issuing evidence of indebtedness against the school district due respectively in six, twelve, and eighteen months from date. Notwithstanding the above quoted language of Judge LAKE, the relators insist that the following quotation from Maher v. State, 32 Neb. 354, 49 N.W. 436, justifies the issuance of the order sought to be collected in this proceeding. The language was used by Judge COBB in the opinion referred to, and is as follows: "In the case of Robbins v. School District No. 1, Anoka County, 10 Minn. 340, it was held that 'instruments in the form of promissory notes payable at a future date with interest beyond the statute rate, executed for the district by the trustees for an indebtedness incurred by the district, are valid between the parties as a contract for forbearance and a promise to pay the amount specified, but a judgment on them can be enforced only against the fund raised by levying the amount of tax authorized.'" The case in which the above quotation was made was a mandamus proceeding to compel the treasurer therein named to pay an order, in the following language:
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