Strawn v. Sarpy County, 33292

• Decision Date: 10 April 1953
• Docket Number: No. 33292,33292
• Citation: 156 Neb. 797,58 N.W.2d 168
• Parties: STRAWN v. SARPY COUNTY et al.
• Court: Nebraska Supreme Court

Page 168

58 N.W.2d 168

156 Neb. 797

STRAWN v. SARPY COUNTY et al.

No. 33292.

Supreme Court of Nebraska.

April 10, 1953.

Syllabus by the Court.

1. Only when provided for by statute can attorney fees be allowed and taxed as costs.

2. When provided for by statute the attorney fee is payable to the party the statute designates.

3. Where a statute provides in part that attorney fees equal to 10 percent of the amount found due in tax foreclosure actions shall be taxed as part of the costs in the action and apportioned equitably as other costs, such fees may be awarded to a county as plaintiff upon failure of attorneys representing the county by contract in tax foreclosure proceedings to file their claim with the county as provided for by section 23-135, R.S.1943.

4. Where attorney fees have been awarded to a county as indicated by syllabus No. 3 and an attorney's claim thereto has been denied and his cause of action dismissed in accordance with a mandate of the Supreme Court, and thereafter interveners in the case file a motion to require the county treasurer to distribute such attorney fees as tax revenue to the subdivisions of government in the county, no such issue having been raised by the interveners until after judgment of dismissal, held, the trial court's order sustaining interveners' motion was erroneous and cannot be sustained.

5. The general rule is that where a suit is dismissed, or a nonsuit ordered, it carries the parties and the entire cause of action out of court, and all further proceedings in the action are unauthorized, until the judgment of dismissal or nonsuit is vacated and the cause reinstated, except to render a judgment or decree for costs or to make such order or decree in the cause as may be necessary to effectuate the judgment terminating the cause, and except on appeal.

Orville Entenman, Papillion, for appellant.

Jos. E. Strawn, pro se.

William R. Patrick, Papillion, for intervenors-appellees.

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

MESSMORE, Justice.

This appeal arises from certain proceedings had in the case of Strawn v. County of Sarpy, 154 Neb. 844, 49 N.W.2d 677. The action as it was tried in the district court was in five causes of action. The plaintiff Strawn sought to recover $6,510.93, which constituted one-half of the attorney fees claimed by him from Sarpy County by virtue of a contract entered into by the plaintiff and one Ralph J. Nickerson, practicing attorneys in Sarpy County, with the board of county commissioners of said county to conduct tax foreclosure proceedings and to receive as attorney fees 10 percent of the amount found due in such actions. The trial court denied the claim. An appeal was taken to this court. This court held that county boards have exclusive original jurisdiction in the examination and allowance of claims against the county arising ex contractu; that the jurisdiction of the district court as to claims against a county arising on a contract was appellate only; and that a judgment of the district court entered in an original action in that court as to claims against a county for legal services rendered to the county was void for want of jurisdiction. The court further held that all questions raised in this case had been previously determined.

A brief resume of a part of the litigation between the same parties might be appropriate at this point. In this connection we make reference to the case of County of Sarpy v. Gasper, 149 Neb. 51, 30 N.W.2d 67. Joseph E. Strawn and the executrix of the estate of Ralph J. Nickerson, deceased, filed a petition of intervention in the cited case to which the County of Sarpy, plaintiff-appellee, and School District No. 1 of Sarpy County, and the City of Bellevue, Nebraska, interveners-appellees, demurred to the petition of intervention of Strawn and the executrix. The district court sustained these demurrers. Such interveners elected to stand on their petition. The district court dismissed the same. From this ruling an appeal was taken.

The contention of the interveners, Strawn and the executrix of the estate of Nickerson, on appeal in that case was that by reason of the contract entered into by Strawn and Nickerson with the board of county commissioners of Sarpy County and the finding and judgment of the district court, the 10 percent charged in each cause of action constituting attorney fees became their property and should be paid to them by the clerk of the district court; that the costs were not a part of the judgment and were subject to the order of the court; and that the judgment awarding attorney fees was res judicata.

The position of the appellees was that Sarpy County was a body politic and corporate; that it could only exercise such powers as were granted by statute, and could only act in such manner as by statute provided; that section 23-135, R.S.1943, provided the exclusive method of payment of appellants for their services in the tax foreclosure actions; that appellants should have filed their claims for compensation with the county clerk for audit and allowance by the board of county commissioners; and that the district court had no jurisdiction to determine and allow fees to be paid special attorneys and, lacking that jurisdiction, the judgment allowing such fees was a nullity.

Section 77-2043, Comp.St.1929, then in force, provided in part: '* * * shall award to the plaintiff an attorney's fee equal to ten per cent of the amount found due, which shall be taxed as part of the costs in the action and apportioned equitably as other costs.'

This court held that the county board had original jurisdiction in the examination and allowance of claims against the county arising ex contractu; that the jurisdiction of the district court as to a claim arising on a contract was in the capacity of an appellate court; and that a judgment of the district court entered in an original action in that court as to a claim for legal services rendered to the county was void for want of jurisdiction, which is precisely the same holding as in the instant case. This court also held in the above-cited case that in this state attorney fees are allowed only in such cases as are provided for by statute. Higgins v. J. I. Case Threshing Machine Co., 95 Neb. 3, 144 N.W. 1037. When such attorney fees are allowed they can be awarded only as provided by statute, in this case to the plaintiff, Sarpy County.

In the instant case the interveners, School District No. 1 of Sarpy County, and...