Woodward v. State ex rel. Thomssen

• Decision Date: 17 May 1899
• Citation: Woodward v. State ex rel. Thomssen, 58 Neb. 598, 79 N.W. 164 (Neb. 1899)
• Parties: WOODWARD ET AL. v. STATE EX REL. THOMSSEN.
• Court: Nebraska Supreme Court

58 Neb. 598

79 N.W. 164

WOODWARD ET AL.

v.STATE EX REL. THOMSSEN.

Supreme Court of Nebraska.

May 17, 1899.

Syllabus by the Court.

1. The mere payment of the costs by an unsuccessful litigant is not a waiver of the right to appeal or prosecute error from the judgment rendered on the merits.

2. Under section 17, c. 10, Comp. St., the incumbent of a public office, having public funds or property in his control, who is re-elected, shall not have his bond approved until he has produced and fully accounted for such funds and property.

3. The provisions of said section 17 are mandatory, and are applicable to any person elected to the office of county treasurer, as his own successor, who has failed to account for or produce to the proper accounting officers all the public funds or property of which he had control.

4. It is reversible error to grant a peremptory writ of mandamus upon the pleadings alone, and without the production of evidence, where a material averment in the application or petition for the writ is put in issue by the answer.

5. Mere conclusions of law in a pleading will be disregarded.

6. Mandamus will not lie to compel the approval of an official bond, when the application for the writ fails to show that the bond tendered was executed by sufficient competent sureties.

Error to district court, Hall county; Thompson, Judge.

Application by the state, on the relation of William Thomssen, for a writ of mandamus to C. D. Woodward and others, board of supervisors of Hall county. Judgment for relator, and defendants bring error. Reversed.W. S. Pearne, Chas. G. Ryan, R. R. Horth, and Fred W. Ashton, for plaintiffs in error.

O. A. Abbott and W. H. Thompson, for defendant in error.

NORVAL, J.

William Thomssen, the relator, instituted mandamus proceedings in the court below to compel the respondents, as members of the board of supervisors of Hall county, to approve his official bond as county treasurer of said county. An answer was filed to the application by all the respondents except two, and the cause was submitted to the court, heard, and decided upon said pleadings. A peremptory writ of mandamus was allowed and issued as prayed, and the costs, amounting to $3.60, were taxed against the respondents, which they subsequently paid. Counsel for the relator strenuously insisted that, the respondents having voluntarily paid the costs adjudged against them by the district court, they are thereby precluded from prosecuting this proceeding to have the judgment allowing the writ reviewed; and Hamilton Co. v. Bailey, 12 Neb. 57, 10 N. W. 539, and Gray v. Smith, 17 Neb. 682, 24 N. W. 340, are cited to sustain the argument. Those decisions are not in point here. They decide that, where a litigant accepts the amount of his recovery, he thereby waives the right to have said judgment reviewed by appellate proceeding. Obviously, it would be unjust to permit a party who has received the fruits of a judgment in his favor to prosecute error therefrom; for the acceptance of the benefits of the litigation is an affirmance of the regularity of the proceedings resulting in the judgment, and a waiver of the right to prosecute appeal or error proceedings. The acceptance of the amount of a judgment, like the taking of a stay of execution or order of sale, is a waiver of all error in the proceedings. But the payment of the costs of a case by the party against whom the same were rendered does not have that effect. This judgment consists of two parts,--one on the merits, and the other for the costs. The payment and satisfaction of the latter is no bar to error proceeding to obtain the reversal of the order or judgment granting the peremptory writ. The payment of the costs is not an affirmance of the validity of the other portion of the judgment. In Elliott, App. Proc. § 152, it is said: “It is obvious that there is an essential difference between one who pays a judgment against him and one who accepts payment of a sum awarded him by a judgment. Payment by a party against whom a judgment is rendered may often be necessary to protect his property from sacrifice, and what a party does to prevent the sacrifice of his property cannot, with any tinge of justice, be held to preclude him from assailing the judgment. Our cases holding that payment by the defendant does not estop him from prosecuting an appeal rest on solid ground, and are sustained by the decisions of other courts.” The doctrine embodied in the foregoing quotation has been recognized and applied by the courts in numerous cases. Kling v. Sejour, 4 La. Ann. 128;Armes v. Chappel, 28 Ind. 469;Belton v. Smith, 45 Ind. 291; Edwards v. Perkins, 7 Or. 149; Hayes v. Nourse, 107 N. Y. 577, 14 N. E. 508;Chapman v. Sutton, 68 Wis. 657, 32 N. W. 683;Mann v. Insurance Co., 38 Wis. 114;Watson v. Kane, 31 Mich. 61;Hartson v. Dale, 9 Wash. 379, 37 Pac. 475. If the payment of a judgment is no waiver of the right to review such judgment, the conclusion is irresistible that the payment of the costs adjudged against the respondents is not a bar to this appellate proceeding. State v. Martland (Iowa) 32 N. W. 485.

It is urged by respondents that the court erred in rendering judgment against them upon the pleadings and without evidence. The application and the answer constituted the entire pleadings. Certain averments of the petition were admitted by the answer, and other allegations of the relator were denied by the respondents. No useful purpose can be subserved by setting out the entire pleadings. or in giving a synopsis of the several averments and admissions therein contained. For present purposes it is sufficient to say that it appears from the application for the writ that the relator, at the general election held in November, 1897, was elected county treasurer of Hall county, as his own immediate successor to said office, for the term of two years, commencing January, 1898; that the vote cast at such election was canvassed, and he was declared elected to said office for said term, and a certificate of election was issued...