Fitch v. Cass County

297 N.W. 905, 139 Neb. 483, 1941 Neb. LEXIS 94

• Court: Nebraska Supreme Court
• Decided: May 2, 1941
• Docket: No. 31161
• Status: Published

Opinion

Carter, J.

This is an action to recover for mileage which the plaintiff claims is due him as a result of his serving as county surveyor of Cass county from November, 1932, to January, 1939. The trial court sustained a demurrer to the petition and, when plaintiff stood thereon, dismissed the action. Plaintiff thereupon appealed to this court.

The petition alleges that plaintiff, while he was county surveyor, filed claims with the board of county commissioners for 24,347 miles actually and necessarily traveled in going to and from work. The claims were allowed for this mileage at the rate of 5 cents per mile. After his term of office expired, plaintiff filed a claim for an additional 5 cents per mile for the 24,347 miles traveled, in accordance with section 33-119, Comp. St. 1929, which claim was disallowed by the board of county commissioners. An appeal was taken to the district court, where a general demurrer to the petition was sustained and the action dismissed. The correctness of this ruling is now before this court.

We think this case is controlled by the recent decision in Hansen v. Cheyenne County, p. 484, post, 297 N. W. 902, and on the authority of that case we conclude that the trial court erred in sustaining a demurrer to plaintiff’s petition. The judgment is reversed and the cause remanded for further proceedings.

Reversed.