#### David E. McFadden, appellee, v. Cedar County, appellant.

Filed February 13, 1914.

No. 17,591.

1. Appeal: Issues: Review. If a case is fully tried by tbe parties in the district court as though the answer contained only a general denial, and without objection to the manner of trial by either party, it will be so considered upon appeal in this court, and admissions in the answer will not be regarded.

2. Officers: Sheriffs: Deputy: De Facto Officer. If the sheriff designates a person to occupy the residence furnished for the jailer by the county, and gives such person the care of the jail and of the prisoners therein, and authorizes him to receive persons upon mittimus from the courts and confine them in the jail. *319and to perform other such duties as can only be performed by authority of the sheriff, the person so appointed should qualify as deputy; but in the performance of such duties he is a *de facto*officer, although he fails to take the oath of office.

3. -: -: Compensation of Jailer. When the sheriff does not perform file duties of jailer in. person, but appoints another, who performs the duties of that office and who gets all of his compensation from the county, the sheriff is not entitled to fees as jailer.

Appeal from the district court for Cedar county: Guy T. Graves, Judge.

*Reversed and dismissed.*

*P. F. O’Gara*and *F. P. Voter,*for appellant.

*H. E. Burkett, contra.*

Sedgwick, J.

The plaintiff, who is sheriff of Cedar county, filed a claim with the county board of that county for an allowance of compensation as jailer. Upon the appeal to the district court, and trial to the court without a jury, his claim was allowed in full, and the county has appealed.

Section 13, ch. 46, Comp. St. 1911, provides: “The ‘ jailer or keeper of the jail shall, unless the sheriff elect to act as jailer in person, be a deputy appointed by the sheriff, and such jailer shall take the necessary oath before entering upon the duties of his office; provided, the sheriff shall in all cases be liable for the negligence and misconduct of the jailer, as of other deputies.” Section 5, ch. 28, C'omp. St. 1911, provides: “Where there are prisoners confined in the county jail, one dollar and fifty cents per day shall be allowed the sheriff as jailer.” The same section requires the sheriff to report the amount of his fees and “pay all fees earned to the county treasurer.” In *Dunkel v. Hall County,*89 Neb. 585, it was held that, when the sheriff acts as jailer in person, he is entitled to compensation as jailer in addition to his salary as sheriff.

The petition in this case alleged that the sheriff had no deputy and “acted and was the jailer in and for said county.” The answer admitted this allegation, and de*320nied “that there is due the plaintiff from the defendant, the sum of $541, or any other sum whatever.” The plaintiff now insists that the answer states no defense, and that he is entitled to judgment upon the pleadings. The attorney for the defendant contends that the allegation that there is nothing due the plaintiff from the defendant is sufficient.to put the plaintiff upon his proof. It might he said that under the decision in *Dunkel v. Hall County, supra,*the admission that the plaintiff had no deputy and acted and was the jailer for the county would be an admission that the plaintiff was entitled to recover in the case, and the subsequent denial that he was entitled to recover would amount to a conclusion not justified under the law. It is, however, unnecessary to consider these nice questions of'practice in this case, since these questions were not presented nor suggested to the court below, but the case Avas tried by both parties upon the merits as though the allegations in the petition AA'efe all denied. Under these circumstances, it is the settled rule of this court to determine the case here as it was tried in the court beloAV, and the only question for us to determine is Avhether under this evidence the judgment of the lower court can be sustained. The sheriff testified in his own behalf, and from his evidence it appears that the county had provided a jail building with the jail proper on the lower floor, and living-rooms for the jailer on the second floor, and that he has never occupied the living-rooms in the jail building, and that the men whom he has appointed from time to time have occupied those rooms with their families; that, these men took care of the prisoners and fed them, and did the general Avork about the jail, and had charge of the jail during Ms absence from the county, and that he had on several occasions been absent for some little time. He testified that he went up to the jail “three or four times a week,” and that the county furnished fuel for the living-rooms of the jail building. When he Avas asked what he meant by “appointing” these men, he said: “Well, I just got them to live in the jail;” and he also testified that he alloAved them to live in the jail *321in consideration of their assisting him. John Fleming testified that he was living in the county jail building with his family, and had done so for some, time, and had charge of it continuously during the time he had lived there; that the sheriff appointed him, and that his duties were to feed the prisoners, to look after them and take care of them, and to look after the sanitary condition of the cells, and their clothing; that he paid no rent or light bills, and that the county furnished him with coal and water; that he boarded the prisoners and received the pay for boarding them. When he was- asked upon cross-examination what he meant by the sheriff appointing him, he said that the sheriff “told me I could go up there and live and take care of it.” He testified that he had a garden on the grounds on which the jail stands, and that all he did around the jail Avas done under the direction of the sheriff. He also testified that in the absence of the sheriff, he had general charge of the jail and prisoners, and that when the sheriff was away no one else took care of them but himself; that when prisoners were brought there he received them and put them in the jail; that he brought prisoners down to the court for hearing; and that the mittimus would be delivered to him, and he would take them back to jail. There was other evidence of this kind which it is not necessary to recite here.

The statute requires that when the sheriff appoints a jailer he shall make him his deputy, and that as such deputy he shall take an oath of office. The sheriff did not make these men his deputies, and they did not take any oath of office. They were, however, appointed by the sheriff. They performed duties, and in controlling the prisoners and committing them they exercised authority that, is inherent in the office of sheriff, and could not be exercised by any one without the authority of the sheriff. It is, of course, true that in designating an individual for such important duties the sheriff should have legally appointed him as deputy, and such deputy should have taken the oath of office; but in assuming and performing the du*322ties of jailer under the authority of the sheriff he became a *de facto*officer, and he has been compensated for his services as such by the county in furnishing him a residence without rent, and other similar advantages. The sheriff in this case has not performed the duties of jailer in person as contemplated by the statute. He has appointed others to perform those duties, and has given them authority necessary for the performance thereof. He has paid them nothing for their services. Their compensation has come from the county, and he cannot require the county to compensate him also for those services by the mere, neglect to qualify them as the law provides.

The judgment of the district court is reversed and the case dismissed.

Reversed and dismissed.

Letton, Fawcett and Hamer, JJ., not sitting.