Thurston County v. McIntyre

Oldham, C. This was a suit against the county of Thurston to recover the amount of numerous unpaid warrants which had been legally issued by the board of county commissioners of said county, and for which, it was alleged, money had been collected and wrongfully applied to the payment of other clailns. The answer of the county admitted that each of the warrants alleged upon in the petition had been legally issued by the board of county commissioners, and that money had been collected by the county for the payment thereof, and had been applied to the payment of other claims, and that all of the warrants so issued were due and unpaid. The answer further alleged that plaintiff had mistaken his remedy in bringing an action at law against [336] the county instead of suing the treasurer of said county on his official bond. The answer further prayed for an injunction permanently restraining plaintiff from further prosecuting his action against the defendant county. Plaintiff demurred to this answer. The demurrer was sustained by the trial court and, defendant refusing to further plead, judgment was entered for plaintiff as prayed for in his petition. To reverse this judgment defendant county brings error to this court. The only question involved in this controversy is as to the right of the holder of county warrants, legally issued, to sue the county for a money judgment on such warrants. This identical question was before this court for determination in the recent case of Ayres v. Thurston County, 63 Neb. 96, and it was there held: “An action to recover a money judgment upon a county warrant may be maintained when the money for the payment of such warrant has been collected and wrongfully applied by the county authorities to the payment of other claims against the county.” The opinion in the above case was carefully considered, and nothing contained in the brief of the plaintiff in error suggests any good reason for departing from the rule therein announced. We therefore recommend that the judgment of the district court be affirmed. Ames and Letton, CC., concur. By the Court: For the reasons given in the. foregoing opinion, the judgment of the district court is Affirmed.