State ex rel. Thiele v. Slocum
| Decision Date | 30 March 1892 |
| Citation | 51 N.W. 969,34 Neb. 368 |
| Parties | STATE, EX REL. JULIUS THIELE, v. I. G. SLOCUM ET AL |
| Court | Nebraska Supreme Court |
ORIGINAL application for mandamus.
WRIT ALLOWED.
J. C Crawford, and T. M. Franse, for relator, cited: State v Lancaster Co., 20 Neb. 419; Smalley v. Yates, 36 Kan. 519; People v. Thompson, 25 Barb. [N. Y.] 73; People v. Green, 29 Mich. 121; Fitch v. McDiarmid, 26 Ark. 482; Reading v. Commonwealth, 11 Pa. 196; Draper v. Noteware, 7 Cal. 276; State v. Silver, 9 Neb. 85; Richardson Co. v. Mussleman, 25 Id., 624.
P. M. Moodie, contra, cited: 1 Black, Judgments, sec. 42; 2 Id., sec. 532; Bond v. Marx, 53 Ala. 177; Brady v. Burke, 27 P. [Cal.], 52; Home for Inebriates v. Kaplan, 84 Cal. 488; Condee v. Barton, 62 Id., 5; Black v. Saunders Co., 8 Neb. 440; R. Co. v. Harlan, 24 Cal. 337; Hunter's Private Road, 46 Pa. 250; Saunders v. Frost, 5 Pick. [Mass.], 259; Pearce v. Chastain, 3 Kelly [Ga.], 230; Robinson v. Cropsey, 2 Edw. Ch. [N. Y.], 148; Cowles v. Whitman, 10 Conn. 121; McNeil v. Call, 19 N. H., 403; People v. Dutchess Co., 1 Hill [N. Y.], 50; People v. Nostrand, 46 N.Y. 375.
This is an application for mandamus to compel the county board of Cuming county to act upon the claim of relator filed with said board, for making the tax list of said county for the year 1888. After issue was joined, the cause was referred to J. E. Frick, Esq., to take the testimony and report the same to the court with his findings of fact and conclusions of law, which report has been filed. The cause is submitted on the exceptions filed thereto by the respondents.
On the 9th day of March, 1891, the relator filed a duly verified claim against Cuming county, for preparing the tax list for 1888, in the sum of $ 634.24, besides interest. Respondents refused to act upon said bill. It is conceded by respondents that relator was entitled to the amount claimed for making the tax list, but it is contended that final action has been taken upon the claim, and further, that relator is indebted to the county on account of fees collected by him as county clerk in a sum greatly in excess of the amount of his said claim, which fees, it is alleged, he has failed to enter on his fee book or report to the county board.
It appears that on January 7, 1889, the relator filed his bill with the county board in the sum of $ 1,564.33, for making the tax list of said county for the year 1888, which was allowed on the 10th day of said month. Subsequently, on the 23d day of January, the county board reconsidered their action and rescinded the order allowing said claim on the ground that the amount was excessive. On the same day the committee theretofore appointed by the county board, to make settlement with county officers, made a report to the board that there was $ 586.68 due relator for making said tax list, and that there was due from him to the county for fees received by him, and not entered on the fee book, the sum of $ 834.56. This report was adopted by the board, but no other or further action was taken on said claim at that time.
It cannot be successfully contended that the action of the board in adopting said report of the committee was either an allowance or rejection of the relator's claim. It was not a final adjudication, nor such an order as an appeal therefrom to the district court could have been successfully prosecuted. The relator attempted to take an appeal. All the statutory steps for that purpose were taken, including the filing of the transcript of the proceeding of the county board in the district court, but the appeal was dismissed by the court on motion of the county attorney on the ground that the order appealed from was not a final order. This holding of the district court is conclusive upon both relator and respondents, and neither can now claim that the action taken by the respondents on January 23, 1889, was a final adjudication of relator's claim, or that the same is a bar to a further consideration of the same by the board of supervisors of Cuming county.
It also appears that the county board, on July 13, 1889, adopted a report of the committee on settlement with county officers, in which it was found that there was due relator for making the tax list $ 634.24, and the sum of $ 100 for one quarter's salary as clerk of the board, and that there was due the county from the county clerk $ 783.71 on account of fees collected and not entered by him on his fee book. No further action was taken upon the claim of relator at that time. Subsequently, on January 16, 1890, the following report was made to the board of supervisors:
To continue reading
Request your trial