Trenerry v. City of South Omaha

• Decision Date: 10 February 1910
• Docket Number: 15,909
• Citation: 124 N.W. 920,86 Neb. 7
• Parties: JOHN H. TRENERRY, APPELLANT, v. CITY OF SOUTH OMAHA, APPELLEE
• Court: Nebraska Supreme Court

124 N.W. 920

86 Neb. 7

JOHN H. TRENERRY, APPELLANT, v. CITY OF SOUTH OMAHA, APPELLEE

No. 15,909

Supreme Court of Nebraska

February 10, 1910

APPEAL from the district court for Douglas county: WILLIAM A REDICK, JUDGE. Affirmed.

AFFIRMED.

D. C Patterson, for appellant.

W. C Lambert and S. L. Winters, contra.

OPINION

BARNES, J.

Action against the city of South Omaha on five warrants of $ 100 each purporting to have been issued by the city and assigned by the payee thereof to the plaintiff. The trial resulted in a judgment for the defendant, and the plaintiff has appealed.

The petition alleges, in substance, the corporate capacity of the defendant city, and that by its ordinances duly and legally adopted the city directed the removal of garbage and refuse, and in pursuance of said ordinance entered into a contract with one W. H. Rawley for that purpose; that the contractor proceeded to, and did, remove the garbage within the limits of South Omaha in pursuance of said ordinance and his contract; that defendant, in part payment thereof, on the 30th day of September, 1895, directed its clerk to issue warrants, among which are the ones in question, in favor of said Rawley, which were duly issued and signed by the city clerk and the mayor of the defendant city on the 1st day of October, 1895; that they were delivered to Rawley, who, for a valuable consideration, sold and assigned them to the plaintiff; that they were duly presented to, and registered for payment by, the treasurer of the defendant city on the 18th day of November, 1895. Then followed, in the body of the petition, a copy of each one of the warrants sued on. Plaintiff further alleged that the defendant city had failed and neglected to provide a proper and legal fund against which the warrants in question might be drawn; that its officers failed and grossly neglected to collect any taxes or revenue from which they could be paid, although more than four years had elapsed in which the city might have collected funds for that purpose. It was further alleged that the plaintiff was the present owner and holder of said warrants, and concluded with a prayer for judgment for $ 500 and interest thereon from the 18th day of November, 1895, at the rate of seven per cent. per annum and costs of suit. The answer properly put in issue all of the allegations of the petition, and further contains certain affirmative matter alleging want of authority on the part of defendant city to issue the warrants and to levy and collect any taxes for the purpose of paying them. It also contained a plea of the statute of limitations. Reply was a general denial.

To maintain the issues on his part plaintiff introduced the following evidence: First, an admission of the defendant "that there is not now, and never has been, any money in the fund upon which the warrants, marked exhibits one to five, inclusive, are drawn; that said warrants have not been paid; that the plaintiff is the owner thereof, and that the signatures of all persons appearing upon the face and back of said warrants are the genuine signatures of the persons they purport to be; that Ed Johnston was...