State v. Lancaster County Bank

8 Neb. 218

• Court: Nebraska Supreme Court
• Decided: January 15, 1879
• Status: Published

Opinion

Maxwell, J.

Tbe’judgment in tbis case is as follows: “It is therefore considered by tbe court (the defendant, by its attorney general, consenting thereto), that tbe said plaintiff, tbe Lancaster County Bank, have and recover from said defendant, tbe state of Nebraska, tbe said sum of five thousand and sixty-seven and fifteen one-hundredths dollars debt, and thirty-two and forty-seven one-hundredths dollars costs, and that said judgment draw interest at the rate of ten per cent from date.”

The state, by T. M. Marquett, its special attorney, brings the case into this court by petition in error.

The errors assigned are, that the facts set forth in the petition are not sufficient to constitute a cause of action, and that judgment was given for the Lancaster county Bank, when it should have been given for the state. The claims upon which this suit is brought have not been presented to the auditor for adjustment. The ease, therefore, comes within the rule laid down in The State v. Stout, 7 Neb., 89, and no action can be maintained thereon. The judgment derives no additional force from the assent of the attorney general. Unless the petition sets forth a cause of action, such assent will not aid the judgment. As an action cannot be maintained on these claims, the judgment of the district court is reversed, and the cause dismissed.

Judgment accordingly.