Fenton v. Salt Lake County , 4 Utah 466 ( 1886 )

POWERS, J.:

This case was first before this court in June, 1884, and is reported in 3 Utah, 423. At that time this court held that the demurrer overruled in the court below should have been sustained, and the judgment was reversed, with instructions to the lower court to sustain the demurrer. This court said: “The demurrer raises the point that the complaint does not state facts sufficient to constitute a cause of action against the defendant county, inasmuch as there is no averment that the claim was presented to, and disallowed by, the county court, in accordance with the provisions of section 6 of an act of the territorial legislature approved Febuary 18, 1885. The section referred to provides that ‘no action shall be commenced or maintained against any county until the person or party having a claim, demand, or right of action shall present the same [to the county court thereof, with proof of the correctness of such claim, demand, or right, and until the same shall have been dissallowed by said court.’ The next section provides that if a claim or demand is not audited in four months after presentation it shall be deemed to be disallowed. See Laws 1878, p. 4. This provision is founded in wisdom, and in furtherance of a judicious pub-lie policy to prevent needless litigation, and to save unnecessary expense and costs, by affording an opportunity amicably to adjust all claims o£ every nature against a county before suit brought. Tbe right to commence or maintain any action against a county is, by the statute, made to depend upon the fact that the claim, demand, or right of action has first been presented to the county court, and has been disallowed either expressly or by non-action. This fact must be stated in the complaint. It is a substantial allegation, upon which the plaintiff’s right of recovery depends, and without it the complaint fails to state a cause of action against the county.”

The cause being remanded to the lower court, and the defendant electing to stand upon his complaint, on the eleventh day of December, 1884, the lower court made the the following order: “This cause being brought on to be heard upon the remittitur from the supreme court herein, and upon the demurrer to the complaint herein, and the court now being fully advised in the premises, and on motion of Z. Snow, attorney for the defendant, it is ordered that the demurrer herein be, and the same is hereby sustained; and it is further ordered, adjudged, and decreed that said plaintiff take nothing by his said suit, and that the complaint herein be dismissed; and it is further ordered, adjudged, and decreed that the said defendant, Salt Lalce county, have and recover from the plaintiff its costs herein expended, and taxed at $289.03, together with said defendant’s costs incurred in the supreme court, and taxed therein at $147 — in all, $436.03.”

From this judgment the plaintiff appeals to this court, as he is entitled to do: McComb v. Commissioners, 91 U. S., 1. The only question which is now before us to pass upon, is whether the court below followed the order of the supreme court. It having done so, there is no error for us to consider, and judgment is affirmed, with costs.

ZANE, C. J., and BOREMAN, J., concurred.