Woodward v. State ex rel. Thomssen

• Decision Date: 17 May 1899
• Docket Number: 10507
• Citation: Woodward v. State ex rel. Thomssen, 58 Neb. 598, 79 N.W. 164 (Neb. 1899)
• Parties: C. D. WOODWARD ET AL. v. STATE OF NEBRASKA, EX REL. WILLIAM THOMSSEN
• Court: Nebraska Supreme Court

79 N.W. 164

58 Neb. 598

C. D. WOODWARD ET AL. v. STATE OF NEBRASKA, EX REL. WILLIAM THOMSSEN

No. 10507

Supreme Court of Nebraska

May 17, 1899

ERROR from the district court of Hall county. Tried below before THOMPSON, J. Reversed.

REVERSED.

W. S Pearne, County Attorney, R. R. Horth, Charles G. Ryan, and Fred W. Ashton, for plaintiffs in error.

W. H Thompson and O. A. Abbott, contra.

NORVAL J. HARRISON, C. J., not sitting.

OPINION

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, are thereby precluded from prosecuting this proceeding to have the judgment allowing the writ reviewed, and Hamilton County v. Bailey, 12 Neb. 56, 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 proceeding. 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 taxed 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, Appellate Procedure, section 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 the 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 Ore. 149; Hayes v. Nourse, 107 N.Y. 577, 14 N.E. 508; Chapman v. Sutton, 68 Wis. 657, 32 N.W. 683; Mann v. AEtna Ins. Co., 38 Wis. 114; Watson v. Kane, 31 Mich. 61; Hartson v. Dale, 9 Wash. 379, 37 P. 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, 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 to him; that thereafter, and within the time prescribed by law, he executed and delivered to the county a bond in due form in the sum of $ 150,000, signed by himself as principal, and the Fidelity & Deposit Company of Maryland, as surety, and that afterward said bond was approved as to form, amount, and surety by the county attorney; that the bond was referred by the county board to the committee, which after due investigation reported the same back to the board for action. The application avers: "That the said board found, which is true, that said bond was in due form, was for the amount required by law, and that the surety thereon was sufficient and ample, and that the same was in every way in accordance with the laws of the said state, and so found; * * * that this complainant prior hereto, on the day of , 1895, at a general election, was elected to...