Fisher v. Board of County Commissioners

SULLIVAN, J- (After Stating the Facts.) — The plaintiffs in error contend, first, that the court erred in submitting the case to a jury. Section 1776 of the Revised Statutes provides for appeals from the action of the board of county commissioners to the district court, and section 1779 provides that the case-on appeal must be heard anew. Section 4369 of the Revised Statutes of 1887 provides that in certain cases issues of fact must be tried by a jury, unless a jury trial is waived. The case at bar comes within the provisions of said section, and the court did not err in submitting the case to a jury. Section 4396 provides that in a certain class of cases the jury may, in their discretion, render a general or special verdict. The case under-consideration comes within that class. , It is further contended that the court erred in receiving any evidence on the trial of the case. There is nothing in this contention. The case, after appeal to the district court, must be tried anew; and the issue being whether Caldwell, the defendant in error, had been actually and necessarily employed in the discharge of his duties as a county commissioner for the nineteen days mentioned, and for which the board had allowed per diem compensation of six dollars, any pertinent evidence upon that issue was admissible. The act of February 23, 1893 (2d Sess. Laws, p. 40), allows each member of the board of county commissioners six dollars per day for each day actually and necessarily engaged in the transaction of county business, and, unless the commissioners are actually and necessarily so engaged, they are not entitled to their per diem compensation. It is further contended that the notice of appeal was fatally defective, in that it does not specify wherein or how the allowance of the said claim for services was illegal or prejudicial to the public interests. The notice states that the appeal is taken from the order of the board allowing John O. Caldwelhs claim for services as county commissioner alleged to have been rendered between the ninth day of April, 1894, and the eighth day of June, 1894, in the sum of $150.40, on the ground that said allowance was illegal, and prejudicial to the 'public interests. The defendants in error appeared in the district court, and moved to have the plaintiffs in error specify specific grounds-of appeal. Thereupon the plaintiffs in error made specific tha [384] grounds of the appeal by filing a specific statement thereof, alleging that during the time for which the board allowed defendant Caldwell for services he was not actually and necessarily engaged in transacting county business. The record shows that the plaintiff in error could not have been in any manner prejudiced by reason of tlie notice of appeal not being more specific, and therefore is not injured. We have carefully considered the contention of plaintiffs in error in regard to the refusal of the court to give certain instructions, and fail to find any error. The question involved was submitted to a jury, and they found that Caldwell, plaintiff in error, had been allowed -per diem, compensation for ten days more than he had actually and necessarily been engaged in the transaction of county business._ There is evidence in the record sufficient to sustain the verdict. The judgment of the district court is affirmed, with costs of this appeal in favor of defendants in error. Morgan, C. J., and Huston, J., concur.