By the Court,
Bigelow, J.:
In an action brought by Lander county against Humboldt county in the district court of Elko county, judgment was entered in favor of the defendant for costs. Upon appeal to this court by Lander county this judgment was affirmed. Humboldt county then presented to the defendants, as the board of commissioners of Lander county, a claim for the costs as entered up in the judgment in the former action, which they rejected. This proceeding is brought to compel
them to approve the same as a legal claim against Lander county.
No execution can issue in this state against the property of a county, and it follows that if the relator is not entitled to the writ of
mandamus
to compel the defendants to allow the claim, there is no way by which it can enforce its judgment. Under such circumstances
mandamus
is the remedy usually resorted to and allowed. (Merrill on Mandamus, sec. 30; 2 Dillon, Mun. Corp., sec. 850.)
Counsel for defendants contends that the writ should not issue in this case, for the reason that the claim has never been audited by the board of commissioners, or rejected by them, and a judgment thereafter obtained upon it; that it is only after a claim has been presented to the commissioners and rejected by them, and then a judgment obtained upon it, as contemplated by Gen. Stats., sec. 1964, that a peremptory writ of
mandamus
can issue to compel the board to allow the claim. Before this can be done, as he contends, this judgment must be presented as an ordinary claim against the county, and upon being rejected another action brought upon it, in which the county will be a defendant, and another judgment obtained thereon.
We are, however, of the opinion that the ascertainment by the judgment of a court having jurisdiction of the case that a certain sum is due from the county, is an auditing of it within the meaning of the statute, and that when so audited it becomes the duty of the commissioners of the county to allow it as such
(Alden
v.
Alameda County,
43 Cal. 270; Merrill on Mandamus, sec. 130), unless some sufficient defense exists thereto, such as fraud in obtaining it, the statute of limitations, a set-off, etc.
When regularly entered up in judgment, the costs become as much a part of the judgment as anything else contained therein, and their amount and justice are no more subject.to collateral attack. It follows that if a second action were permissible, and were brought upon this judgment, the plaintiff would certainly be entitled to a second judgment, unless some defense, such as those suggested, existed thereto. The claim was not rejected upon such grounds, nor does it appear that any sufficient defense to the judgment exists, and consequently a ruling that another action is necessary would
simply subject Lander county to the additional costs thereby entailed. Such a proceeding would be worse than useless, and in our judgment is entirely unnecessary. It is the fact that the county’s liability has become fixed and settled, and is no longer open to controversy, that makes it the absolute duty of the defendants to allow the claim, and it is equally as fixed where the claim is made upon a judgment upon which the county was plaintiff, as it would be were it a defendant therein. A judgment so obtained would be open' to the same defenses that this one is, and no more nor less. The duty to allow such a claim as this exists independently of.Gen..Stats., sec. 1981, and consequently is not confined to the circumstances therein mentioned.
■ 2. It is said, however, that the determination- of whether any defense to the judgment exists involves the exercise of judgment and discretion upon the part of the board; that it consequently becomes a judicial question, and that the writ of
.mandamus
will not issue to control the judgment and discretion of the board. In a certain sense this is true, and it is doubtless difficult to draw a line between ministerial duties, the exercise of which will be controlled by the writ, and those involving the exercise of judgment and discretion, which will not. Considerable loose language has been used in the decision, and they are, perhaps, to some degree in conflict, but i.t is nevertheless very clear that the fact that the act involves to /some extent the determination of disputed questions of either law or fact, and consequently the exercise of judgment and discretion, does not prevent the court from taking jurisdiction nor from compelling the officer to act in a particular •way, for otherwise there would be very few cases indeed in which the writ could ever issue.
This point, as it arises here, has, however, been so well considered in the recent case of the
State
v.
Murphy,
19 Nev. 89, that it is unnecessary to more than briefly refer to that decision. It was there held that, while the.writ will not issue to. control discretion, or to revise judicial action, this rule applies only to the act to be commanded by the writ, and not to' the determination of purely preliminary questions. That princL pie is decisive here. All the questions concerning which the' board could possibly exercise any judgment or discretion; such as whether the claim is based upon a valid judgment;
and whether any defense exists thereto, are merely preliminary ones to the main question of whether it is their duty to allow the claim. If no such question exists, or if it is determined against the board, then we see at once that it becomes their mere ministerial duty to approve the claim; and if such were alleged, it would, under that decision, devolve upon us to pass upon it, and if we concluded it untenable, the writ should issue, no matter what the conclusion of the board may have been.
. What seems also another sufficient answer to this contention is stated in the case of
Woods
v.
Strother,
76 Cal. 545, where it is held in one of Mr. Commissioner Hayes’ most luminous opinions, that the true criterion is not whether the act sought to be controlled by the writ calls for the .exercise of judgment and discretion in the officer, but whether it was intended that this decision should be final, and if not; whether there is any other plain, speedy and adequate remedy. Here no one will contend that it was intended that the rejection of the relator’s claim should finally conclude its right to recover thereon, nor is there any other speedy and adequate remedy. Having obtained a judgment which' finally determines in, the affirmative the‘relator’s right to: recover its costs, the only adequate remedy is one that will give it the fruit of that successful litigation, which only the writ of
mandamus
will do.
4. Gen. Stats., sec. 1995, requiring claims against a county to be presented within six months of the time they become due or payable, by its terms only applies to unaudited claims, and if we are right in the conclusion to which we have come that a claim upon a judgment duly rendered is an-audited claim, then this section has no application.
5. It is next argued that it was not the duty of the board to allow this claim, for the reason that no sufficient judgment has ever been entered in the case in which the claim is made.
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By the Court,
Bigelow, J.:
In an action brought by Lander county against Humboldt county in the district court of Elko county, judgment was entered in favor of the defendant for costs. Upon appeal to this court by Lander county this judgment was affirmed. Humboldt county then presented to the defendants, as the board of commissioners of Lander county, a claim for the costs as entered up in the judgment in the former action, which they rejected. This proceeding is brought to compel
them to approve the same as a legal claim against Lander county.
No execution can issue in this state against the property of a county, and it follows that if the relator is not entitled to the writ of
mandamus
to compel the defendants to allow the claim, there is no way by which it can enforce its judgment. Under such circumstances
mandamus
is the remedy usually resorted to and allowed. (Merrill on Mandamus, sec. 30; 2 Dillon, Mun. Corp., sec. 850.)
Counsel for defendants contends that the writ should not issue in this case, for the reason that the claim has never been audited by the board of commissioners, or rejected by them, and a judgment thereafter obtained upon it; that it is only after a claim has been presented to the commissioners and rejected by them, and then a judgment obtained upon it, as contemplated by Gen. Stats., sec. 1964, that a peremptory writ of
mandamus
can issue to compel the board to allow the claim. Before this can be done, as he contends, this judgment must be presented as an ordinary claim against the county, and upon being rejected another action brought upon it, in which the county will be a defendant, and another judgment obtained thereon.
We are, however, of the opinion that the ascertainment by the judgment of a court having jurisdiction of the case that a certain sum is due from the county, is an auditing of it within the meaning of the statute, and that when so audited it becomes the duty of the commissioners of the county to allow it as such
(Alden
v.
Alameda County,
43 Cal. 270; Merrill on Mandamus, sec. 130), unless some sufficient defense exists thereto, such as fraud in obtaining it, the statute of limitations, a set-off, etc.
When regularly entered up in judgment, the costs become as much a part of the judgment as anything else contained therein, and their amount and justice are no more subject.to collateral attack. It follows that if a second action were permissible, and were brought upon this judgment, the plaintiff would certainly be entitled to a second judgment, unless some defense, such as those suggested, existed thereto. The claim was not rejected upon such grounds, nor does it appear that any sufficient defense to the judgment exists, and consequently a ruling that another action is necessary would
simply subject Lander county to the additional costs thereby entailed. Such a proceeding would be worse than useless, and in our judgment is entirely unnecessary. It is the fact that the county’s liability has become fixed and settled, and is no longer open to controversy, that makes it the absolute duty of the defendants to allow the claim, and it is equally as fixed where the claim is made upon a judgment upon which the county was plaintiff, as it would be were it a defendant therein. A judgment so obtained would be open' to the same defenses that this one is, and no more nor less. The duty to allow such a claim as this exists independently of.Gen..Stats., sec. 1981, and consequently is not confined to the circumstances therein mentioned.
■ 2. It is said, however, that the determination- of whether any defense to the judgment exists involves the exercise of judgment and discretion upon the part of the board; that it consequently becomes a judicial question, and that the writ of
.mandamus
will not issue to control the judgment and discretion of the board. In a certain sense this is true, and it is doubtless difficult to draw a line between ministerial duties, the exercise of which will be controlled by the writ, and those involving the exercise of judgment and discretion, which will not. Considerable loose language has been used in the decision, and they are, perhaps, to some degree in conflict, but i.t is nevertheless very clear that the fact that the act involves to /some extent the determination of disputed questions of either law or fact, and consequently the exercise of judgment and discretion, does not prevent the court from taking jurisdiction nor from compelling the officer to act in a particular •way, for otherwise there would be very few cases indeed in which the writ could ever issue.
This point, as it arises here, has, however, been so well considered in the recent case of the
State
v.
Murphy,
19 Nev. 89, that it is unnecessary to more than briefly refer to that decision. It was there held that, while the.writ will not issue to. control discretion, or to revise judicial action, this rule applies only to the act to be commanded by the writ, and not to' the determination of purely preliminary questions. That princL pie is decisive here. All the questions concerning which the' board could possibly exercise any judgment or discretion; such as whether the claim is based upon a valid judgment;
and whether any defense exists thereto, are merely preliminary ones to the main question of whether it is their duty to allow the claim. If no such question exists, or if it is determined against the board, then we see at once that it becomes their mere ministerial duty to approve the claim; and if such were alleged, it would, under that decision, devolve upon us to pass upon it, and if we concluded it untenable, the writ should issue, no matter what the conclusion of the board may have been.
. What seems also another sufficient answer to this contention is stated in the case of
Woods
v.
Strother,
76 Cal. 545, where it is held in one of Mr. Commissioner Hayes’ most luminous opinions, that the true criterion is not whether the act sought to be controlled by the writ calls for the .exercise of judgment and discretion in the officer, but whether it was intended that this decision should be final, and if not; whether there is any other plain, speedy and adequate remedy. Here no one will contend that it was intended that the rejection of the relator’s claim should finally conclude its right to recover thereon, nor is there any other speedy and adequate remedy. Having obtained a judgment which' finally determines in, the affirmative the‘relator’s right to: recover its costs, the only adequate remedy is one that will give it the fruit of that successful litigation, which only the writ of
mandamus
will do.
4. Gen. Stats., sec. 1995, requiring claims against a county to be presented within six months of the time they become due or payable, by its terms only applies to unaudited claims, and if we are right in the conclusion to which we have come that a claim upon a judgment duly rendered is an-audited claim, then this section has no application.
5. It is next argued that it was not the duty of the board to allow this claim, for the reason that no sufficient judgment has ever been entered in the case in which the claim is made. In that the judgment is simply for costs, and in no wise determines the questions that were at issue in the action, and consequently is not a final judgment. We regard this as one of the preliminary questions that the board had the right to pass upon in the first instance, but in which the; correctness of their conclusion is subject to review by this court. It would seem that under the decisions the judgment
is insufficient (1 Freeman on Judg., sec. 16; 1 Black on Judg., sec. 31), but we are of the opinion that the defendants are not in a position to take advantage of the defect. Lander county treated it as a final judgment when it appealed from it to this court, and we entertained the appeal and decided the case upon its merits. Having treated the entry-as a judgment decisive of the merits of the case, and having taken and received the benefit of a remedy which it was otherwise not entitled to, we think that Lander county, and consequently the defendants, as its representatives, should now be estopped to claim that no final judgment has been entered in the action.
In Bigelow on Estoppel, page 601, the author says: “It may accordingly be laid down as a broad proposition that one who has taken a particular position in the course of
a
litigation must, while that position remains unretracted, act consistently with it.”
The People
v.
The Albany & Sus. R. R. Co.,
39 How. Pr.
51,
and
Irwin
v.
Nuckols,
3 Neb. 441, read in connection with
Nuckols
v.
Irwin,
2 Id. 60, are quite in point. See, also, 1 Herr. Est. & Res. Jud., sec. 285.
In
Clark
v.
Dunnam,
46 Cal. 204, the court said: “The only point to be decided under the agreed statement is whether the decree of August 20,1869, is a final money judgment in the sense of the statute, and, therefore bore interest. The plaintiff in this action treated the decree as final when he prosecuted an appeal from it. If it was not final his appeal should have been dismissed on that ground. But we entertained the appeal and decided the cause, and, in justice, the plaintiff' should now be estopped to deny the finality of the decree.”
6. After the filing of the cost bill the plaintiff, Lander county, made a motion to re-tax the costs. This motion has never been heard or disposed of, and it is urged that for this-, reason the judgment is not conclusive of the amount and correctness of the costs therein entered. Any error in the-cost bill should have been corrected in that action. We regard the judgment as conclusive in this proceeding that the costs therein entered were properly charged. A simple' motion to re-tax would not stay the. execution or enforcement of the judgment; nor destroy its conclusiveness, and, there
fore, whether now pending or not, it is immaterial in this proceeding.
Let the writ issue.