#### Box Butte County v. R. C. Noleman, Administrator of P. H. Driscoll, Deceased.

Filed March 17, 1898.

No. 7895.

1. Appeal from County Board. An appeal from an order of a county-board, allowing a claim against tbe county, brings tbe matter to tbe district court for trial *He novo.*

2.-: Issues. In a case appealed from an order of a county board issues should be joined in tbe district court as in cases appealed from justices of tbe peace.

3. -: Pleading: Judgment. In a case appealed from an order of a county board disallowing a claim tbe district court cannot lawfully render judgment against tbe county without pleadings being-filed or a trial bad.

Error from the district court of Box Butte county. Tried below before Kinkaid, J.

*Reversed.*

*B. F. Gilman,*for plaintiff in error.

*R. C. Noleman, contra.*

Sullivan, J.

The county of Box Butte leased its poor farm to P. H. Driscoll for the period of one year, from March 1, 1893. The lease was in writing, signed by both parties, and provided that Driscoll should pay as rental the sum of $50 on November 1,1893, and that he should, in consideration of the leasing, keep and board the county paupers at a fixed rate per week. In July and August, 1894, claims were filed by Driscoll against the county for keeping and boarding paupers, and in the following December were presented to the county commissioners for their consideration and action thereon. The order of the commissioners in the matter, duly made and entered of record, is here set out: “P. H. Driscoll, being indebted to Box Butte county in the sum of $50 for rent of poor farm -for 1893, as per lease and contract on file, which amount was due November 3,1893, and the said P. H. Driscoll having *240claims numbered 2408 and 2459 on file against said county for boarding paupers amounting to $54.45, on motion it is herebj' ordered that the amount due the county from said P. H. Driscoll, to-wit, $50, be deducted from the amount of said claims and that a warrant be drawn on the general fund for the balance $4.45.” Prom this order Driscoll appealed and at the April term of the district court filed a motion for judgment on the certified transcript of the commissioners’ record. The motion was sustained and a judgment rendered for the full amount of Driscoll’s claim. The county brings the case here for i eview by petition in error.

As indicating the theory upon which the district court gave judgment against the defendant without pleadings being filed or proofs submitted, we quote from the record: ‘•This cause came on for hearing on motion of the plaintiff for judgment on the pleadings, being ihe record, and upon hearing argument of counsel, cause was submitted to the court. The court, being fully advised in the premises, sustains the motion and does find that the plaintiff have and recover judgment against the defendant in the-sum of $54 and his costs at $3.35. The court reserves the right to set aside or modify this order if the county attorney shall produce authorities to the effect that the county board can audit a claim of the county against an individual and deduct it from his claim against the county as proposed by the honorable county board in this case. Such authorities to be produced June next.” It is apparent that the court proceeded on a wrong theory. Mutual demands having arisen out of the contract between the parties, the plaintiff was entitled to an allowance of his claim only to the extent that it exceeded the claim of the county against him. Besides the appeal vacated the order of the county board. The cause was in the district court for trial *de novo. (State v. Furnas County,*10 Neb. 361.) Issues should have been joined and a trial had. *(Haskell v. Valley County,*41 Neb. 234.) There is in the record no legal basis for the judgment com*241plained of and it is, therefore, reversed .and the cause remanded for further proceedings.

Reversed and remanded.