Stenberg v. State ex rel. Keller

• Decision Date: 06 May 1896
• Citation: 48 Neb. 299,67 N.W. 190
• Parties: STENBERG ET AL. v. STATE EX REL. KELLER ET AL.
• Court: Nebraska Supreme Court

48 Neb. 299

67 N.W. 190

STENBERG ET AL.

v.STATE EX REL. KELLER ET AL.

Supreme Court of Nebraska.

May 6, 1896.

Syllabus by the Court.

1. A county board has exclusive original jurisdiction to examine and pass upon claims or demands against the county properly cognizable for audit and allowance, and the jurisdiction of the district court, as to such, is appellate merely.

2. An appellate court acquires no jurisdiction of the subject-matter, where the tribunal or body from which the appeal was taken possessed none.

3. In the absence of statutory authority, one county board cannot review or reverse the act of a prior board performed within the scope of authority conferred by law.

4. Held, that the respondents had jurisdiction to examine and allow relators' claim.

5. While boards of county commissioners exercise functions judicial in their nature, in the allowance and rejection of claims against the county, such boards are not courts, in a constitutional sense, or within the general recognized acceptation of that term.

6. Douglas Co. v. Keller, 62 N. W. 60, 43 Neb. 635, adhered to.

7. A judgment by a court having jurisdiction of the parties and subject-matter is conclusive upon the parties thereto, and their privies, unless reversed in appellate proceedings. It settles all matters litigated, and cannot be assailed collaterally.

8. The Code of Civil Procedure relating to set-offs authorizes such defenses to be interposed before, but not after, judgment. A court of equity, where proper grounds exist therefor, may allow a set-off in cases not provided for by statute.

9. A promissory note without consideration is invalid as between the original parties, and cannot be enforced against the maker, in the hands of the payee.

Error to district court, Douglas county; Duffie, Judge.

Application, on the relation of Charles B. Keller and others against Emery M. Stenberg and others, county commissioners of Douglas county, for mandamus. A peremptory writ was awarded, and respondents bring error. Affirmed.Wm. D. Beckett and Reed & Beckett, for plaintiffs in error, in support of the proposition that, the board of county commissioners having no jurisdiction to consider the petition of Keller and Doane, the district court acquired none by the appeal, cited Stringham v. Board of Sup'rs, 24 Wis. 594;Latham v. Edgerton, 9 Cow. 227;Plunkett v. Evans (S. D.) 50 N. W. 961;Fidelity Trust Co. v. Gill Car Co., 25 Fed. 737;Manufacturing Co. v. Rasey, 69 Wis. 246, 34 N. W. 85;Town of Wayne v. Caldwell, 1 S. D. 483, 47 N. W. 547; Fitzgerald v. Beebe, 7 Ark. 305.

Charles B. Keller and George W. Doane, for defendants in error.

NORVAL, J.

This was an application to the district court of Douglas county, by the relators, for a peremptory mandamus to compel the respondents, the board of county commissioners of said county, to take the necessary steps to cause a warrant to be issued upon the county treasurer, in favor of relators, in payment of a judgment recovered in said district court by Charles B. Keller and George W. Doane against Douglas county for the sum of $4,832.62 and costs, taxed at $99.73, which judgment was affirmed by this court. Douglas Co. v. Keller, 43 Neb. 635, 62 N. W. 60. A peremptory writ of mandamus was ordered as prayed, and the respondents have brought the record here for review.

There is no controversy as to the facts The respondents insist that the judgment sought to be enforced by this proceeding was rendered without jurisdiction, and therefore is void. Before entering upon the discussion of the questions involved, it will not be inappropriate to briefly state the facts: The county of Douglas being the owner of 160 acres of land, which had been purchased and was used as a poor farm, its board of county commissioners adopted a resolution submitting to the voters of the county, for their adoption or rejection, the proposition to sell a part of the poor farm, and with the proceeds build a county hospital. This question was voted upon at the general election held in said county on November 2, 1886; and much less than one-half, and but a little over one-third, of the total vote polled in said county at said election was cast in favor of said proposition, although it received more than two-thirds of all the votes cast on the question. In February, 1887, the east 50 acres of the poor-farm tract was subdivided into lots and blocks, and platted as an addition to the city of Omaha. In the following April, Charles B. Keller and George W. Doane purchased from the county, at public auction, three of the lots, for $4,950. One-third of the purchase money was paid in cash, and for the balance they gave to the county their three promissory notes, aggregating $3,300, and secured the same by mortgage upon the lots. At the same time the county commissioners executed to the purchasers a warranty for said lots. Subsequently Keller and Doane paid two of the notes, and likewise paid the taxes upon the lots purchased by them, including taxes levied by the city of Omaha for street improvements. The other note remains wholly unpaid. In April, 1892, Keller and Doane filed with the county commissioners a verified, itemized account or claim for the sums paid by them for said lots and for taxes, and demanded a return of the money thus paid, on the ground that the deed was void for lack of authority on the part of the commissioners to execute the same. The demand was refused, the claim was rejected and disallowed, and an appeal was prosecuted to the district court, where, in May, 1893, the judgment was entered in favor of Keller and Doane. The latter has assigned his interest therein to the relator the Merchants' National Bank of Omaha. In is also shown by the record that there are available funds in the treasury of Douglas county sufficient to pay off and discharge said judgment.

The theory of relators was and is that the county commissioners, in executing the deed, acted without authority of law, and the conveyance is a nullity, since they could not sell any part of the public grounds of the county without having first been empowered to do so by the electors of the county; and further that, the sale being void, relators were entitled to have the moneys paid by them refunded by the county. This contention was sustained by the decision in Douglas Co. v. Keller, 43 Neb. 635, 62 N. W. 60. It was there held that a sale by a county board, of the public grounds of the county, without having first submitted the question to the electors thereof, and without receiving the consent of the majority of the electors voting at an election authorized by law, is void and passes no title to the purchaser. On the other hand, it is strenuously insisted by respondents that the county board was without power to pass upon and audit relators' claim, and therefore the appeal conferred no jurisdiction upon the district court to adjudicate. We have been favored with able and exhaustive arguments at the bar, and in printed briefs by counsel for the respective parties, which have been invaluable aids in our investigation.

We will first notice the main question in the case, namely, is the judgment void for want of jurisdiction of the subject-matter? There is no room for doubt that the district court, by the appeal, acquired no greater power or authority to hear and determine the matter than was possessed by the county board. True, the county appeared in the appellate court, and contested the claim. But that is wholly immaterial. Jurisdiction of the person may be waived, but consent cannot confer jurisdiction of the subject-matter. If the county board had no power or authority to act in the premises, it is very evident that the district court obtained none; and so say the authorities. Brondberg v. Babbott, 14 Neb. 517, 16 N. W. 845;Railway Co. v. Ogilvy, 18 Neb. 638, 26 N. W. 464;Moise v. Powell, 40 Neb. 671, 59 N. W. 79;Johnson v. Parrotte, 46 Neb. 51, 64 N. W. 363;Keeshan v. State, 46 Neb. 155, 64 N. W. 695. This rule obtains in other states. See authorities cited in brief of plaintiffs in error. It is equally well settled that a county board has exclusive original jurisdiction in the examination and allowance of most claims against the county. No original action can be maintained against a county upon a claim or demand properly cognizable for audit and allowance before the county board. As to all such, the jurisdiction of the district court is appellate merely. Brown v. Otoe Co., 6 Neb. 111; Clark v. Dayton, Id. 192; Dixon Co. v. Barnes, 13 Neb. 294, 13 N. W. 623;Richardson Co. v. Hull, 24 Neb. 536, 39 N. W. 608;Id., 28 Neb. 810, 45 N. W. 53;Fuller v. Colfax Co., 33 Neb. 716, 50 N. W. 1044;State v. Merrell, 43 Neb. 575, 61 N. W. 754.

It is contended by respondents that the claim upon which the judgment in question was rendered was improperly presented to the county board, as it is one which that body was not authorized to act upon, for two reasons: First. The county board, as an executive or administrative body, could not return to Keller and Doane the money which they paid on the lots, without undoing the acts of its predecessors; and one executive body or official is powerless to review or overturn the acts of former officers or bodies. Second. The county board, in the matter of the allowance of claims, is a court or judicial tribunal, and as such it was without jurisdiction to consider or pass upon the claim, because the title to real estate is involved. We will notice these objections in the order above stated:

We do not question the soundness of the doctrine urged by respondents, that one executive officer cannot review and reverse the acts of a predecessor performed in the scope of his authority; for such is undoubtedly the law, when no statutory authority to do so is given, and it was so held and applied in State v. Alexander, 14 Neb. 280, 15 N. W. 365. That was an application for mandamus, against the auditor and secretary of state, to compel the...