Weston v. Falk

• Decision Date: 06 November 1902
• Citation: 92 N.W. 204,66 Neb. 198
• Parties: WESTON, AUDITOR, ET AL. v. FALK.
• Court: Nebraska Supreme Court

66 Neb. 198

92 N.W. 204

WESTON, AUDITOR, ET AL.

v.FALK.^a1

Supreme Court of Nebraska.

Nov. 6, 1902.

Syllabus by the Court.

1. When a claim against the state is allowed in part by the auditor, if the claimant accepts a warrant drawn for the part allowed he thereby waives his right of appeal.

Error to district court, Lancaster county; Holmes, Judge.

Action by William I. Falk against Charles Weston, auditor of public accounts, and another. Judgment for plaintiff, and defendants bring error. Reversed.

Frank N. Prout, Atty. Gen., Norris Brown, Dep. Atty. Gen., and William B. Rose, Asst. Atty. Gen., for plaintiffs in error.

W. P. McCreary, for defendant in error.

SEDGWICK, J.

This is a proceeding in error brought by Charles Weston, auditor of public accounts, and George W. Marsh, secretary of state, on behalf of the state, from an order made by the district court of Lancaster county requiring the auditor and secretary of state to allow and approve a claim and draw a warrant in favor of defendant in error, Falk, for the sum of $2,916.83. The defendant in error presented to the auditor a claim against the state for the sum of $8,750.50 for supplies alleged to have been furnished the state for the use of the inmates of the asylum for the insane located at Hastings. A hearing was had on this claim before the auditor, at which evidence was taken. The auditor thereupon, and by the recommendation of the state board of supplies, allowed the claim in the sum of $5,883.67, and disallowed it in the sum of $2,916.83. The auditor issued a warrant for the amount allowed, and the defendant in error accepted the warrant, and then took an appeal from the decision of the auditor to the district court of Lancaster county; and upon hearing in that court a judgment was entered directing the auditor and secretary of state to allow and approve the remainder of the claim, $2,916.83, and draw a warrant therefor. From this judgment of the district court the state prosecutes error to this court.

The question is, can the claimant accept a warrant for the amount allowed him by the decision of the auditor, and then appeal from that decision? In Hamilton Co. v. Bailey, 12 Neb. 56, 10 N. W. 539, it was held that: “Where an account is filed with the board of county commissioners, and allowed in part, and a warrant drawn for the sum thus allowed is accepted by the claimant, he thereby waives his right of appeal.” And the court said: “He cannot accept the amount awarded to him by an order or judgment, and thereby receive the benefit of the same, and appeal from such order or judgment. Independent Dist. of Altoona v. District Tp. of Delaware, 44 Iowa, 201;Railroad Co. v. Byington, 14 Iowa, 572;Borgalthous v. Insurance Co., 36 Iowa, 250. But even if an appeal would lie, it is impossible to review the finding of the county commissioners or district court. The items of the account are not given, and there is no testimony showing what items were rejected and what allowed.” But it is urged that the case at bar should be distinguished because of the difference in the wording of the statute applicable thereto. Section 2 of article 8 of chapter 83 of the Compiled Statutes of 1901 provides: “The auditor of public accounts shall keep a record of all claims presented to him for examination and adjustment, and shall therein note the amount of such claim as shall be allowed or disallowed, and in case of the disallowance of all such claims, or of any part thereof, the party aggrieved by the decision of the auditor and secretary of state, may appeal therefrom to the district court of the county where the capitol is located, within twenty days after receiving official notice.” The claim originally consisted of many items, and it does not appear that the auditor specified what items of the claim...