McBride v. Lathrop

24 Neb. 93

• Court: Nebraska Supreme Court
• Decided: January 15, 1888
• Status: Published

Opinion

Reese, Ch. J.

An action was instituted in the county court, by defendant in error against plaintiff in error, for the recovery of the sum of $107.21, alleged to have been paid by defendant in error to plaintiff in error, as shown by the transcript of the proceedings before the county court. The pleadings filed in that court are not attached to the records, but from the county judge’s transcript it appears that plaintiff in error filed an answer denying the allegations ■of the bill of particulars, and alleging that the money sought to be recovered was paid to him, as clerk of the district court of Holt county, on a judgment in said court in favor of George E. Cheney, and against defendant in error. A reply was filed denying the existence, of such judgment, as well as the other allegations of the answer.

It is shown by the county judge’s transcript that a trial was had, and that plaintiff in error was examined as a witness on his own behalf, and that the records of the ■district court containing the judgment against defendant in error and in favor of Cheney were offered in evidence, and that plaintiff in error then moved to dismiss the action, for the reason that the county court had no jurisdiction to try the same. The motion was sustained and the action dismissed, to which defendant in error excepted. The cause was then removed to the district court by proceedings in error, where the judgment of the county judge was reversed and the cause set down for trial. To this, plaintiff in error excepted, and brings the cause to this court by like proceedings. None of the evidence taken upon the trial before the county judge is preserved in the record before us. We are thereftwe left in doubt, First, As to the issue presented by the pleadings and tried before the county judge; and Second, As to the evidence upon which the judgment of the district court was rendered. All presumptions being in favor of the regularity of the proceedings in the district court, we must presume that the pleadings before the county judge, as well as the evidence adduced upon the trial, were before the court, and that its judgment was correct.

The question argued by counsel, as presented by the statement contained in the briefs, is, that Cheney recovered a judgment against defendant in error before a justice of the peace of Knox county, and that a transcript of such judgment was filed in the office of the clerk of the district court of Holt county, without having been filed in the office of the clerk of the district court of Knox county; and that •defendant in error, finding an apparent judgment in the district court of Holt county, based upon the transcript of the justice of the peace of Knox county, paid the amount -due thereon to the clerk, for the purpose of canceling the same, and soon thereafter brought suit against plaintiff in error for the recovery of the money back, upon the ground, that the judgment upon which the money was paid was void. At the time of the payment of the money, defendant in error, by his agent, took from plaintiff in error a receipt, which we here copy:

“O’Neill, Neb., March 11, 1887.

“ Eeceived from John W. Drayton the sum of $107.21, in full payment of judgment filed by George E. Cheney and John Benedict against E. M. Lathrop. Said judgment was paid by said John W. Drayton for E. M. Lathrop, his agent, and pays said, sum under protest, and demands to have the same held, pending action in error in Knox county, Nebraska.

“John McBride.

“ Clerk of the District Court.

“By J. H. Meredith,

“Deputy.”

As the case must be tried in the district court, we deem it proper to say that, in our opinion, an action on the part of defendant in error for the recovery of this money cannot be maintained on the ground, alone, that the apparent judgment in the district court of Holt county was void. If the judgment in Knox county remains unreversed and in full force, and the plaintiff therein caused a transcript thereof to be filed in the office of the clerk of the district court of Holt county, he cannot be heard to call in question the legality of his own proceeding. If defendant in error recognized that judgment as valid, to the extent of paying it, even if under protest, he cannot afterwards repudiate such payment and bring suit against the clerk and recover it back. The satisfaction of that judgment would be a satisfaction of the judgment in Knox county, and the money would be held for the judgment plaintiff, unless it should be made to appear that the judgment from which the transcript was taken w'as canceled by payment or by appellate proceedings, and that the money remained in the hands of plaintiff in error. In that event, he (or his successor in office) would hold it, in his official capacity, for defendant in error, and would be required by the district court, by a summary proceeding, to refund it, the satisfaction or cancellation of the judgment in Knox county being a cancellation of the judgment in Holt county.

As there is nothing in the record before us by which we can be informed as to the ground upon which either the county judge or district court acted, we cannot reverse the judgment of the district court. It is therefore affirmed.

Judgment affirmed.

The other judges concur.