Wheeler v. Barker
| Decision Date | 03 June 1897 |
| Docket Number | 8706 |
| Citation | 71 N.W. 750,51 Neb. 846 |
| Parties | BERT GLENDORE WHEELER v. GEORGE E. BARKER ET AL |
| Court | Nebraska Supreme Court |
ERROR from the district court of Douglas county. Tried below before FAWCETT, J. Reversed.
REVERSED AND REMANDED.
Isaac Adams, for plaintiff in error:
As courts of record having original and exclusive jurisdiction county courts follow the practice and procedure of the common law, except as such practice or procedure is modified by statute.
It has been the practice of courts of record of general jurisdiction to exercise their discretion in assuming the custody of trust funds wherever their jurisdiction over such funds was invoked. (2 Daniels, Chancery Practice [4th Am. ed.], ch. 40, p. 1770; Blake v. Blake, 2 S. & L. [Ir.], 26; Hosac v. Rogers, 6 Paige Ch. [N. Y.], 415.)
The regularity of the order cannot be attacked collaterally. (Simpson v. Cook, 24 Minn. 180.)
The record of a court of competent jurisdiction is not void on account of a mere error appearing by the record. (Lewis v. Williams, 54 Mo. 200; Townsend v. Townsend, 60 Mo. 246; Shoemaker v. Brown, 10 Kan. 383; Merrick v. Kennedy, 46 Neb. 264.)
In taking possession of the money the county judge acted in his ministerial capacity, and hence officially.
If the county judge obtained the money in question through failure to perform his official duties according to law, he is liable on his official bond. (Merrick v. Kennedy, 46 Neb. 264; Fox v. Meacham, 6 Neb. 530; Rouss v. Wright, 14 Neb. 457; Smith v. Lovell, 2 Mont. 332.)
E. J. Cornish, contra:
By filing an amended and substituted petition plaintiff waived any error, if any, in the ruling upon the demurrer to the original petition. (Buck v. Reed, 27 Neb. 67; Singer Mfg. Co. v. McAllister, 22 Neb. 359; Dorrington v. Minnick, 15 Neb. 397; Harral v. Gray, 10 Neb. 186; Pottinger v. Garrison, 3 Neb. 221; Heman v. Glann, 129 Mo. 325; Dorsett v. Greencastle, 40 N.E. [Ind.], 131; Barrett v. Northwestern Mutual Life Ins. Co., 68 N.W. [Ia.], 906.)
Amended pleadings the same in substance as prior pleadings, to which a demurrer has been filed and sustained, may be stricken from the files on motion. (Barrett v. Northwestern Mutual Life Ins. Co., 68 N.W. [Ia.], 906; Heman v. Glann, 129 Mo. 325.)
The money did not come into the hands of the county judge by virtue of his office. Sureties on an official bond are liable only for moneys coming into the possession of their principal by virtue of his office. (Scott v. State, 46 Ind. 203; Dewey v. Kavanaugh, 45 Neb. 233; Kendall v. Aleshire, 28 Neb. 707; McCormick v. Thompson, 10 Neb. 484; Ottenstein v. Alpaugh, 9 Neb. 237; Huffman v. Kopplekom, 8 Neb. 348; Jenkins v. Lemonds, 29 Ind. 294; Crane v. Bedwell, 25 Miss. 507; Mathews v. Montgomery, 25 Miss. 150; State v. Odom, 86 N. Car., 432; Hardin v. Carrico, 3 Met. [Ky.], 289; Schmitt v. Drouet, 42 La. 1064; Saltenberry v. Loucks, 8 La. 95; McKee v. Griffin, 66 Ala. 211; State v. Norwood, 12 Md. 177; State v. Rollins, 29 Mo. 267; State v. Davis, 88 Mo. 585; State v. Bonner, 72 Mo. 387; State v. McDonough, 9 Mo. App., 63; Gerber v. Ackley, 37 Wis. 43; San Jose v. Welch, 65 Cal. 358; Linch v. Litchfield, 16 Ill.App. 612; United States v. Adams, 24 F. 348; Ward v. Stahl, 81 N.Y. 406; People v. Pennock, 60 N.Y. 421.)
The opinion contains a statement of the case.
This was an action brought by Bert Glendore Wheeler, an infant, by her guardian, Isaac Adams, against James W. Eller, formerly county judge of Douglas county, and George E. Barker and William S. Rector, the sureties on his official bond. The sureties demurred to the original petition. The demurrer was sustained and an amended petition filed. The sureties then moved to strike the amended petition from the files for the reason, in brief, that it was substantially the same as the original petition. This motion was sustained, and the plaintiff electing not to plead further, a judgment of dismissal was entered. The plaintiff prosecutes error assigning as error the sustaining of the demurrer to the original petition and the striking from the files of the amended petition.
The defendants in error contend that if the amended petition was substantially the same as the original, there was no error in striking it from the files, and that the court cannot review the order sustaining the demurrer to the original petition, because the error, if any, was waived by pleading over. It is no doubt true as a general principle that a party waives error in a ruling upon demurrer by pleading over. It is doubtful, however, whether such error is waived when the amended pleading has been stricken from the files, because in that case the party pleading has never had the benefit of his amendment. In support of the contention of the defendants we are cited to Barrett v. Northwestern Mutual Ins. Co., 99 Iowa 637, 68 N.W. 906. The court there applied the rule whereby error is waived by pleading over to a similar state of facts, but in that case there had been a failure to assign as error the sustaining of the motion to strike, and the intimation is that that assignment would have been available. We think the correct view is this: That, having elected to plead over, the plaintiff cannot now open up for review the order sustaining the demurrer, but having assigned as error the striking from the files of the amended petition, she is entitled to have that ruling reviewed. If the amended petition differed in any material respect from the original, there was error in striking it from the files; but that error was not prejudicial unless the amended petition stated a cause of action.
It is unnecessary to set out the two petitions at length. The original was brief. After alleging the election and qualification of Eller as county judge, and properly pleading the bond sued on, it proceeds: "That thereafter, on the 29th day of March, 1892, one F. E. McMullen, as administrator of the estate of Bert G. Wheeler, deceased, the father of plaintiff herein, in pursuance of an order theretofore made by said Eller as such county judge, paid into said county court and to said Eller as such county judge the sum of $ 1,935.92, which said money constituted plaintiff's distributive share of her said deceased father's estate, and that on the 23d day of May thereafter said Eller as such county judge ordered said sum of money so paid into court and in his possession to be paid to the lawful guardian of said minor, thereafter to be appointed by said court, upon the filing by such guardian of his duly verified receipt therefor." Then follow allegations to the effect that on the 2d day of January, 1894, said court appointed Gust Hamel guardian of the estate of the plaintiff; that Hamel qualified and filed a duly verified receipt as required by the order pleaded, and that subsequently Eller paid to Hamel $ 484.42; that the remainder, $ 1,451.50, is in the possession of Eller in his official capacity as judge, and that he refuses to pay it over to the guardian. It will be observed that in this petition the plaintiff confined herself very strictly to the pleading of ultimate facts, and did not, with regard to the estate of Bert G. Wheeler, deceased, allege that the county court of Douglas county was the court which appointed the administrator or had jurisdiction of the estate. For all that appears in the petition, McMullen might have been appointed administrator by another court, and might not have been in any way accountable to the county court of Douglas county, so that the orders pleaded may have been absolutely void. In the amended petition these averments are supplied, and this was in itself sufficient to give the amended petition standing as such and rendered it erroneous to strike it from the files because it was similar to the original. Moreover, the amended petition set forth at large the various orders and pleaded all the facts with greater detail. The rule requiring a pleader to state the ultimate facts, and not the evidence and not conclusions of law, is one always difficult of application; and within certain limits the pleader may for himself determine with what degree of detail he will plead the facts. There was, therefore, error in striking the amended petition from the files. Was the error prejudicial? In other words, did the amended petition state a cause of action against the defendants?
In brief, the amended petition shows that the estate of Bert G Wheeler, deceased, was in process of administration through the county court of Douglas county; that on application of the administrator for a final settlement and discharge, the court found that all claims had been paid and that there remained in the hands of the administrator $ 3,934.94, to be applied first to the unpaid costs and expenses of administration, and the remainder to be distributed as might thereafter be decreed; and upon payment into court by the administrator of said sum the administrator should be discharged; that the money was paid into court and the administrator discharged; that thereafter the court entered a further order finding that Ada Wheeler, the wife of the deceased, and Bert G. Wheeler, minor daughter, were the only heirs at law; and still later ordered distribution of the sum in ...
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