
    James W. Thompson et al. v. James E. Campbell.
    Filed January 17, 1895.
    No. 5715.
    Appeal From County Court: Rulings on Pleadings: Review. Where a petition was filed in the district court in a. cause appealed from the county court, it was erroneous to overrule a demurrer to such petition for the sole reason that the-question presented by the demurrer had not been urged or relied upon in the inferior court.
    Error from the district court of Sarpy county. Tried below before Scott, J.
    
      George A. Magney and James Hassett, for plaintiffs in error.
    
      C. L. Hover, contra.
    
   Ryan, C.

This action was begun in the county court of Sarpy county. In the bill of particulars it was alleged that defendant Thompson had been elected county clerk of said county, and thereupon had giyen a bond conditioned as required by law, with the defendants S. B. Knapp and G. Swayze as his sureties; that, as such clerk, Thompsonafterwards collected and received fees belonging to. plaintiff in the sum of $74.47, which he had failed and refused to-pay. There was a prayer in the bill of particulars for a judgment in the sum above named. By motion the defendants asked that plaintiff should be required to make more definite and certain his bill of particulars by showing therein when the defendant received the fees for the recovery of which this suit has been brought. This motion was overruled, and an exception was duly taken. There was a judgment for the amount of plaintiff’s claim in the county court, from which an appeal was duly taken.

On the 4th day of April, 1892, there was filed in the district court of Sarpy county, in this cause, a petition which differed from the originally filed bill of particulars chiefly in the statements that the fees sought to be recovered were collected in thirteen distinct amounts, described as having been paid at stated times on and between the 4th day of March, 1880, and the 3d day of October, 1881. There was a prayer for judgment for the sum of $69.42, the aggregate amount of the above mentioned payments, with interest thereon at the rate of seven per cent per annum from January, 1882. To this petition there was a demurrer, “for the reason that the petition does not state facts sufficient to constitute a cause of action.” The record before us contains the following language: “This cause came on to be heard upon the demurrer of defendants, and it appearing to the court that the defendants were present at the trial of this cause in the court below, and trial was had on the merits of the case, and that defendants did not claim relief under the statute of limitations, and that limitation was not at issue in the lower court, and the court being advised in the premises, overruled said demurrer, to which ruling of the court the defendant excepts, and the defendant in open court having elected to stand on his demurrer, and refusing to prosecute his appeal, the judgment of the lower court is affirmed.” Following the above recitations there was rendered a judgment against the defendants for the sum of $119.38 and costs.

The petition in error raises but one question, and that is as to the ruling upon the demurrer above recited. It is difficult to imagine what particular facts were relied upon by the district court as proper to be considered in connection with the pleading assailed by the demurrer. It could not have been that by failing to demur in the county court the defendants were deemed to have waived the right to demur in the district court, for in the practice governing justices of the peace a demurrer has no place. (Miller v. Mesick, 15 Neb., 646.) No inference could properly arise against the defendants by reason of their failure to answer in the county, court, for in cases triable as by a justice of the peace there is no requirement that the defendant answer, except where there is claimed a set-off and plaintiff demands that descriptive of such set-off a bill of particulars be filed by defendant. (Code, sec. 951.) As has already been made to appear, the defendants’ motion to require plaintiff to state in his bill of particulars at what time Thompson received the fees sued for was overruled. We do not undertake to say that in this there was error, for we have not that question presented. If this motion had been sustained, the bill of particulars presumably would have shown when each cause of action arose. In that event the question whether or not the statute of limitations had barred plaintiff’s right of action when this suit was begun could properly have been raised. From the record of the proceedings in the county court it does not appear that the right to insist upon the bar of the statute was waived; indeed, a contrary intent might possibly be inferred from the motion just mentioned. There was no showing in the district court as to the evidence introduced in the county court, and even if proof of such evidence had been tendered, it could not have been received or considered on a demurrer to the petition. There are doubtless cases in which, by reason of departure from the issues tried in the inferior court, a motion for.proper relief should be sustained. (First Nat. Bank v. Carson, 30 Neb., 104; O’Leary v. Iskey, 12 Neb., 137; Fuller v. Schroeder, 20 Neb., 636.) It is not desirable, however, to extend the operation of this rule beyond eases in which it is made clearly to appear that the issues tendered in the district court differ from those originally presented and determined. In the case at bar there appears to have been made no motion with a view to conforming issues in the district court to those which, before the appeal, had been tried. The demurrer did not perform this office; indeed, by its very nature this was im possible, for a demurrer lies only when certain defects appear on the face of the pleading attacked. It is very evident from these considerations that the district court erred in overruling the demurrer of the defendants on the grounds assigned in the record. Its judgment is therefore

Reversed.  