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gence of the clerk, examined and approved. Toncray v. Dodge County, 33 Neb. 802 (51 N. W. 235).

Accounting for fees collected.

made by the sheriff on execution, is an official act, and his failure to faithfully ac count for such money is a breach of his bond, for which his sureties are liable in an action upon it. McDonald v. Atkins. 13 Neb. 568, (14 N. W. 532).

15. (1882.) In counties containing less than 8,000 inhabitants county clerks are also clerks of the district courts of their respective counties. The duties being imposed upon them as county clerks, they must report the fees received by virtue of their office. State, ex rel. County Commissioners, v. Whittemore, 12 Neb. 252 (11 N. W. 310). 16. (1905.) The clerk of the district court is not required to account to the county for fees collected by him for services rendered by his predecessor before section 3, chapter 28, Compiled Statutes, as amended April 3, 1899, went into effect, although the act was in effect when such fees were collected. Boettcher v. Lancaster County, 74 Neb. 148 (103 N. W. 1075).

17. (1905.) Under act April 3, 1899, amending section 3, chapter 28, Compiled Statutes, a clerk of the district court is required to account for the fees earned by him as a member of the board of commissioners of insanity. Boettcher v. Lancaster County, 74 Neb. 148 (103 N. W. 1075).

district

18. (1905.) The clerk of the court is not required to account to the county for fees collected by him for services rendered by his predecessor before section 3, chapter 28, Compiled Statutes, as. amended April 3, 1899, went into effect, although the act was in effect when such fees were collected. Boettcher บ. Lancaster County, 74 Neb. 148 (103 N. W. 1075).

19. (1905.) Under act April 3, 1899, amending section 3, chapter 28, Compiled Statutes, the clerk of the district court extends credit at his peril, and will be required to account for the fees earned by him for official services, whether the same are collected or not. Boettcher v. Lancaster County, 74 Neb. 148 (103 N. W. 1075).

Liability on official bond.

20. (1879.) The making of a false certificate that a sum of money has been allowed a county clerk, whereby he was enabled to sell the same, not being an official act or within his duties, his sureties are not liable to purchaser thereof. Ottenstein v. Alpaugh, 9 Neb. 237 (2 N. W. 219).

21. (1882.) The receipt of money by the clerk of a court of record upon a judgment in his office, whether paid voluntarily or

22. (1892.) While the record of a district court is supposed to contain a history of the proceedings before that tribunal, and is under the conrtol of the judge, so far that it shall be a truthful statement of the proceedings, yet the ownership of the books themselves is in the county; and for any dereliction of official duty in the clerk of the court, by reason of which the county sustains pecuniary loss, the officer and sureties will be liable on his bond. Toneray t. Dodge County, 33 Neb. 802 (51 N. W. 235).

23. (1892.) A county may recover from a clerk of the district court and his sureties for expenses in reproducing records destroyed through the negligence of such clerk, though his bond runs to the people and not to the county. Toncray v. Dodge County, 33 Neb. 802 (51 N. W. 235).

24. (1895.) The sureties on the bond of a district clerk are not liable for the ap proval of an insufficient delivery on an attachment. Dewey & Stone v. Kavanaugh, 45 Neb. 233 (63 N. W. 396).

25. (1895.) The mere facts that the clerk of the district court, without authority, approved a delivery bond and directed the sheriff to release the attached property, in the absence of evidence of fraud or deceit practiced by the clerk, were not alone sufficient to render him liable to the plaintiffs in attachment for the loss sustained by reason of the clerk's approval of the bond and the release of the property by the sheriff in obedience to the order of the clerk. Dewey & Stone v. Kavanaugh, 45 Neb. 233 (63 N. W. 396).

26. (1903.) Where the sureties deny the execution and delivery of the official bond of the clerk of court and the clerk defends on the ground that he merely received the money as bailee, and not in his official capacity as clerk, a tender of part payment by him does not impair the defense of the sureties. Craw v. Abrams, 68 Neb. 553 (97 N. W. 296).

27. (1903.) The sheriff and the purchaser at a judicial sale disobey the statute making the sheriff the sole custodian of the proceeds of the sale, at their peril, but they cannot by such disobedience, and the

payment of the money to the clerk of the court, impose obligations upon him, as such clerk, foreign to the duties of his office. Craw v. Abrams, 68 Neb. 546 (94 N. W. 639).

28. (1905.) Before the act amendatory of section 3, chapter 28, Compiled Statutes, 1903, limiting the salary of clerks of the district court went into effect, a clerk had collected the fees for making complete records, but died before such records were made. At the request of his representatives, and after said act went into effect, his successor made up these records and received the fees therefor from such representatives. In an action by the county on the official bond of such successor, held, that he was properly chargeable with such fees. Boettcher v. Lancaster County, 74 Neb. 148 (103 N. W. 1075).

29. (1907.) In an action on the bond of a clerk of the district court for negligence in failing to index certain judgments, resulting in the loss of the lien thereof, defended on the ground that plaintiff had negligently failed to enforce his judgments against certain property of the judgment debtor, the instructions examined, and held not to be prejudicial to the plaintiff. German Nat. Bank of Beatrice v. Laflin, 78 Neb. 715 (111 N. W. 578).

30. (1907.) In an action on the bond of a clerk of the district court for negligence in failure to index certain judgments, resulting in a loss of the lien thereof, defended on the ground that plaintiff had negligently failed to enforce his judgment against certain property of the judgment debtor, the evidence examined and held to sustain a judgment for defendants. German Nat. Bank of Beatrice v. Laflin, 78 Neb. 715 (111 N. W. 578).

Mandamus to compel performance of duty. 31. (1890.) Section 889 of the code confers authority upon the district court to direct its clerk in the performance of his official duties, and the supreme court will not issue a mandamus to compel such clerk to issue an order of sale upon a decree of foreclosure, where there has been no application to and refusal by the district court to direct its clerk to issue such order of sale. State, ex rel. Sloman, v. Moores, 29 Neb. 122 (45 N. W. 278).

32. (1897.) The supreme court will not issue mandamus to compel the clerk of the district court to issue execution on a judg

ment when no application to, and a refusal by, the district court to so issue. State, ex rel. Ogden, v. Frank, 52 Neb. 553 (72 N. W. 857).

33. (1888.) Section 27, chapter 19, Compiled Statutes, 1887, makes it the duty of the clerk of the district court to keep a record of the proceedings of the court, under the direction of the judge of such court. The supreme court has no jurisdiction or authority to exercise the functions of the district court in the matter of the preparation of the records of said court, its jurisdiction, except in certain cases, being appellate and not original. State, ex rel. Wilkins, v. Le Fevre, 25 Neb. 223 (41 N. W. 184).

Custodian of funds and liability therefor.

34. (1893.) Where real estate has been sold under proceedings in partition and on the discharge of the referee he is ordered to turn over the proceeds in his possession to the clerk of the court for the benefit of the persons entitled thereto, the clerk holds such funds as a mere trustee and not strictly as clerk of the court, and it is his duty to deliver it to the persons entitled to it. State, ex rel. Levy, v. Spicer, 36 Neb. 469 (54 N. W. 849).

35. (1893.) On the facts stated in the petition, the defendant, a district clerk, held certain money and notes in controversy in trust, and it was his duty to pay and deliver the same to the parties entitled thereto. State, ex rel. Levy, v. Spicer, 36 Neb. 469 (54 N. W. 849).

36. (1893.) In an action to compel a clerk to pay over money in his hands, a demurrer overruled and five days given to answer. State, ex rel. Levy, v. Spicer, 36 Neb. 469 (54 N. W. 849).

37. (1897.) A clerk of the district court, as to moneys received by him in payment of fines and penalties imposed in his court, is a collector and custodian of public money within the meaning of section 2, article XIV of the constitution. State, er rel, Broatch, v. Moores, 52 Neb. 770 (73 N. W. 299).

38. (1897.) An action in equity will not lie to subject to the payment of the claim. of a judgment creditor money held by the clerk of a court in his official capacity. Anheuser-Busch Brewing Ass'n v. Hier, 52 Neb. 424 (72 N. W. 588).

39. (1898.) A clerk of the district court who, knowingly and intentionally deposits

public money received in payment of fines imposed in his court, and his own private funds in a bank in one general account, to his own individual credit, and before paying the fines to the county treasurer withdraws all of the funds from the bank and uses the same for his own use, is properly held in default within the meaning of section 2, article XIV of the constitution, and is ineligible to any office of trust or profit during the existence of such default. State, ex rel. Broatch, v. Moores, 56 Neb. 1 (76 N. W. 530).

40. (1893.) The clerk of the court is the proper custodian of money paid into court pursuant to an order or judgment of the court. Dirks v. Juel, 59 Neb. 353 (80 N. W. 1045).

41. (1899.) Bringing money into court is the act of depositing money in the hands of the proper officer of the court for the purpose of satisfying a debt or duty. Dirks v. Juel, 59 Neb. 353 (80 N. W. 1045).

42. (1899.) Where, by his answer, defendant concedes that he received and receipted for certain money as clerk of the district court, and has paid a portion of it to his successor in office, he is still presumed to retain the balance in custodia legis, notwithstanding the fact that he may actually have paid it out on an ineffectual garnishment. Baker v. Peterson, 57 Neb. 375 (77 N. W. 774).

43. (1900.) Money paid to the clerk under an order of the court is received by him in his official capacity. Bantley v. Baker, 61 Neb. 92 (84 N. W. 603).

44. (1900.) Where, in an action for specific performance, the decree provides that notes evidencing part of the purchase price shall be deposited with the clerk of the court pending the execution of a deed by the vendor, such clerk is neither charged with the duty, nor given the right, to collect or receive in his official capacity the money due upon the notes. Bantley v. Baker, 61 Neb. 92 (84 N. W. 603).

45. (1901.) Where the clerk of a state court for a certain county has possession of the records of the territorial court for the same county, both courts being of the same description, it will be presumed his possession was rightful. McPherson v. Commercial Nat. Bank, 61 Neb. 695 (85 N. W. 895).

46. (1904.) When the clerk of the district court pays money in his hands belong

ing to A, over to B, as attorney for C, and B pays the same, less his fee, to C, they are all three liable to A therefor regardless of whether their act was the result of intention, or ignorance of the law. Story v. Robertson, 5 Unof. 404 (98 N. W. 825). Compensation and fees.

47. (1880.) Whether the language of the statute includes anything more than clerk's fees for transcript of the record of the case, quære. Stanton County v. Madison County, 10 Neb. 304 (4 N. W. 1055).

48. (1882.) The act to regulate fees, approved February 15, 1877, is not an amendment of sections 1, 5, 8, and 14, chapter 19, Revised Statutes 1866, but an original act. State, ex rel. County Commissioners, v. Whittemore, 12 Neb. 252 (11 N. W. 310).

49. (1900.) Act of 1899 (Laws 1899, ch. 31) amending section 3, chapter 28, Compiled Statutes, entitled "Fees," does not intrench upon or amend section 43, chapter 19, Compiled Statutes, 1899, respecting the appointment of deputies by clerks of the district court. State, ex rel. Douglas County, v. Frank, 60 Neb. 327 (83 N. W. 74).

50. (1900.) The act of 1899 (Session Laws, ch. 31) amending section 3, chapter 28, Compiled Statutes, 1897, entitled "Fees," limits the compensation which the clerk of the district court may receive for his serv ices, is germane to the section amended, and its provisions are within its title. State, ex rel. Douglas County, v. Frank, 60 Neb. 327 (83 N. W. 74).

51. (1901.) Chapter 31, Session Laws, 1899, amending section 3, chapter 28, Compiled Statutes, 1897, is germane to the section amended, and its provisions are within its title. State, ex rel. Douglas County, v. Frank, 61 Neb. 679 (85 N. W. 956).

52. (1903.) Under the authority of chapter 34 of the laws of 1897, the county board may, in the exercise of good faith, make a supplemental allowance of compensation for the services of the clerk of the county court after the services have been rendered. County of Adams v. Bowen, 69 Neb. 405 (95 N. W. 869).

53. (1905.) The clerk of the district court cannot be required to search the records of his office to ascertain what liens, if any, exist against lands described in an abstract of title, and make and enter upon the abstract a compilation and statement of the result of such search. If he performs such service, he is entitled to reasonable

compensation for making such statement and entering it upon the abstract. He is not entitled to a fee for making a search of his records necessary to the performance of another service "to which a fee is attached." Sheibley v. Hurley, 74 Neb. 31 (103 N. W. 1082).

Clerk of supreme court.

54. (1884.) The salary of the clerk of the supreme court is exclusive of the modes of compensation for preparing the state reports for publication. In re Brown, 15 Neb. 688 (50 N. W. 273).

55. (1884.) Under the provisions of section 19, laws 1879, p. 82, in connection with section 8, article VI of the constitution, the reporter of the supreme court is only entitled to draw from the state treasury the cost of printing, stereotyping, and binding each volume of reports not exceeding $2.25 per volume. Expenses incurred by the reporter in preparing copy, reading proof, and packing and shipping are not properly chargeable against the appropriation made by the legislature for payment of said volumes. The salary paid to the reporter is exclusive of any and all other modes of compensation for work on the reports. In re Brown, 15 Neb. 688 (50 N. W. 273).

56. (1902.) The appropriation for the salary of the reporter and ex-officio clerk and librarian of the supreme court is made by section 25, article XVI, of the constitution, and requires no special legislative enactment. Weston v. Herdman, 64 Neb. 24 (89 N. W. 384).

Liability for taking excessive fees.

57. (1891.) Where a clerk of the district court takes fees, is excess of that limited by law, he is liable to the party injured for the penalty provided by section 34, chapter 28, Compiled Statutes. Lydick v. Palmquist, 31 Neb. 300 (47 N. W. 918). Action for penalty and recovery of illegal fees.

58. (1889.) In an action to recover the penalty for taking illegal fees for making out and certifying to certain transcripts of judgments the testimony tended to show that eight of the transcripts were demanded at one time, and were received together and paid for in one sum, although separately itemized in the bill, an instruction which in effect directed the jury to find that there were eight separate causes of action was properly refused. Phenix Ins. Co. v. Bohman, 28 Neb. 251 (44 N. W. 111).

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COLLATERAL ATTACK.

On particular orders or proceedings, see specific topics.

On discharge in bankruptcy, see Bankruptcy, §§ 59, 60.

On organization of corporation, see Corporations, §§ 30-34.

On decree in divorce, see Divorce, § 114. On bill of exceptions, see Exceptions, Bill of, §§ 223-228.

Appointment of administrator, see Executors and Administrators, §§ 34-39.

On petition for appointment of administrator, see Executors and Administrators, $ 23.

On sale of realty of estates, see Executors and Administrators, §§ 213-215, 246-248.

On removal of administrator, see Executors and Administrators, § 40.

Allowance of claim against estates, see Executors and Administrators, § 142.

On void liquor license, see Garnishment, § 21.

On order to pay over money in garnishment, see Garnishment, § 114.

On license to sell liquor, see Intoxicating Liquors, § 119.

On judgments, see Judgment, XI.

On appraisement on judicial sale, see Judicial Sales, § 95.

Confirmation of judicial sale, see Judicial Sales, §§ 428-430.

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CROSS-REFERENCE.

See, also, Corporations; Schools and School Districts.

Nature and status of organization.

1. (1877.) The corporate body known as "The Regents of the University of Nebraska," is, in its strictest sense, a public corporation. Regents of the University v. McConnell, 5 Neb. 423.

2. (1877.) The creation of the University of Nebraska, as a public corporation by legislative authority, is not repugnant to the constitution. Regents of the University v. McConnell, 5 Neb. 423.

3. (1877.) The University of Nebraska corporation is but part of the machinery employed in carrying on the affairs of state, and is subject to be changed, modified, restrained or destroyed as the general interests and public exigencies may require. Regents of the University v. McConnell, 5 Neb. 423.

the pecuniary benefit of its members. Mo Leod v. Lincoln Medical College, 69 Neb 550 (96 N. W. 265). Officers.

6. (1880.) The state treasurer is no the treasurer of the board of regents of the state university. State, ex rel. McLeon, v. Leidtke, 9 Neb. 468 (4 N. W. 61).

7. (1905.) The provisions of the biennial election law (laws 1905, ch. 65) are found to be in conflict with the paramount law relative to the election of judicial off cers and regents of the university, and the time thereof, and of their terms of office; and are held to be inoperative and void. State, ex rel. Polk, v. Galusha, 74 Neb. 188 (104 N. W. 197).

8. (1905.) Under the constitution it is mandatory that a general election shall be held in each odd numbered year for the election of university regents. State, er rel. Polk, v. Galusha, 74 Neb. 188 (104 N. W.

Salaries.

4. (1903.) 197). The State University of Nebraska is a state institution, and its board of regents is an agent of the state. Von Forel v. State, ex rel. Ansley, 4 Unof. 843 (96 N. W. 648).

5. (1903.) The fact that an educational institution may acquire and convey property necessary to the accomplishment of its object, and may charge tuition for instruction, does not render it an incorporation for

Compelling allowance of salaries of instructors, see Mandamus, § 143.

9. (1880.) Under the appropriation bill of 1879, the salaries of the officers and professors of the State University for the years 1879 and 1880 are payable out of the general fund. State, ex rel. McLean, v. Leidtke 9 Neb. 468 (4 N. W. 61).

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