Wilcox v. County of Perkins

• Decision Date: 21 October 1903
• Docket Number: 12,565
• Parties: ARTHUR B. WILCOX ET AL. v. COUNTY OF PERKINS
• Court: Nebraska Supreme Court

97 N.W. 236

70 Neb. 139

ARTHUR B. WILCOX ET AL. v. COUNTY OF PERKINS

No. 12,565

Supreme Court of Nebraska

October 21, 1903

ERROR to the district court for Perkins county: HANSON M. GRIMES JUDGE. Affirmed.

AFFIRMED.

Wilcox & Halligan, for plaintiffs in error.

Benjamin F. Hastings, John M. Stewart and Thomas C. Munger, contra.

OPINION

HOLCOMB, J.

County of Perkins, defendant in error, in its corporate capacity prosecuted an action in the district court against defendant Wilcox, formerly county clerk, and the other defendants who were sureties on his official bond, because of Wilcox's alleged failure to fully and properly account for, and pay over to the county, certain fees claimed to have been collected in the discharge of his official duties, which fees were then due and owing to the county. The action was an ordinary one on the official bond of Wilcox for an alleged breach of its conditions respecting his duties to account for fees received while in office. The answer of the defendants denied the allegations of the petition, and pleaded affirmatively that, prior to the institution of the action the principal, Wilcox, had made a full and complete settlement with the county board of plaintiff county, touching and covering the matters mentioned in the petition; that the same was fair in all respects, and that such settlement was conclusive on the county and, for that reason, it was estopped from questioning the same. To the answer a reply was filed, in which it is alleged that the settlement pleaded as a defense is of no effect and not binding on the county, for the reason that the defendant, Wilcox, had fraudulently omitted from his report certain fees that had been by him collected, and falsely and fraudulently represented that the report he presented to the county board was a correct report of all the fees received by him while in office, when, in truth and in fact, certain fees were omitted, which omission was falsely and fraudulently made to deceive the county commissioners; that they were deceived and, because thereof, the alleged settlement was of no binding effect. A trial was had to the court and a jury wherein, after the admission of evidence, on a peremptory instruction, a verdict was rendered for a specified sum in favor of the plaintiff. The defendants prosecute error.

The bond sued on was a joint obligation, instead of joint and several as required by statute, and for this reason it is contended, exceptions having been properly preserved by demurrer to the petition and an objection to the introduction of any evidence, that the petition fails to state a cause of action and therefore no recovery can be had. The objection is believed to be untenable. This court has held in Clark v. Douglas, 58 Neb. 571, 79 N.W. 158, that an irregularity in this respect, in the form of an official bond prescribed by the statute, is not an objection thereto, of which the obligors upon the instrument can avail themselves as a defense thereto, and that the bond is good to the extent it complies with the statute in that regard. The case cited is decisive of the question in the present controversy and the objection is therefore without merit.

The principal point, however, relied upon as ground of error, as stated by counsel for plaintiffs in error, is in respect of the peremptory instruction of the court to the jury to return a verdict for the county. It is argued that on the face of the pleadings a settlement is admitted, to vitiate which the reply alleged that it was obtained by the fraud of the plaintiff, and that fraud, under our statute, is a question of fact which, under all circumstances, should be submitted to a jury for its determination. Counsel contend that under no theory of the evidence did the court have the right to take the case from the jury and instruct them to bring in a verdict for the plaintiff, for any amount. No bill of exceptions containing the evidence is preserved; consequently, we may assume that if, under any possible state of the evidence, the instruction was proper, then, we must so hold in the present case. While by section 20, chapter 32 of the Compiled Statutes (Annotated Statutes, 5969), entitled "Frauds," it is provided that the fraudulent intent, in all cases arising under the provisions of this chapter, shall be deemed a question of fact and not of law, it may very well be doubted whether this section has any application to alleged fraudulent acts, such as are pleaded in the reply in the case at bar. The statute of frauds is in relation to fraudulent...