Andrews v. Mullen

• Decision Date: 20 March 1883
• Parties: SYLVESTER ANDREWS, PLAINTIFF IN ERROR, v. EUGENE MULLIN, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

15 N.W. 216

14 Neb. 248

SYLVESTER ANDREWS, PLAINTIFF IN ERROR, v. EUGENE MULLIN, DEFENDANT IN ERROR

Supreme Court of Nebraska

March 20, 1883

ERROR to the district court for Saline county. Heard below before WEAVER, J.

REVERSED AND REMANDED.

E. S Abbott, for plaintiff in error, cited authorities referred to in the opinion.

T. B Parker, for defendant in error.

OPINION

MAXWELL, J.

On the 6th day of February, 1882, Mullin brought an action against Andrews before a justice of the peace of Saline county. At the time set for the hearing Andrews appeared by an attorney and filed a motion to dismiss the action for certain reasons therein stated. The motion was overruled, whereupon Mullin demanded a jury, which was selected, and summons issued requiring the jurors to appear February 10th at one o'clock P.M.

The transcript shows that at one o'clock P.M. of the 10th day of February, 1882, Mullin appeared, but Andrews failed to appear, whereupon the jury were impaneled and a verdict rendered in favor of Mullin for the sum of $ 159, upon which judgment was given. Andrews thereupon appealed to the district court, where, on motion of Mullin, the appeal was dismissed upon the ground that Andrews had failed to make his defense before the justice. It is claimed that the district court erred in dismissing the appeal.

The defendant in the justice court was entitled to one hour in which to appear. The justice, therefore, could not lawfully impanel a jury and proceed with the trial before 2 o'clock P.M. of the day to which the cause was adjourned. The only question presented by the record is, did the court err in dismissing the appeal?

In Crawford v. Clendenning, 7 Neb. 474, it was held that as the statute specially provides that a judgment rendered in the absence of a party in a justice's court may be set aside and a trial had on the merits, no appeal will lie to the district court until after a motion has been made to set aside the judgment, and a new trial is had. In that case it is said: "It seems clearly to be the legislative intent that actions in justice's court must be tried upon the merits of both the claim of one party and the defense of the other, before an appeal shall be taken to the district court; and this rule seems to be reasonable and just, for where the law establishes the court in which a party shall bring his action, the adverse party should not be allowed to disregard the process of such court, and then select the forum of his own choice in which the cause shall be first tried upon the merits of the cause. If such a practice were permitted, it would defeat the main object for which the justices' courts were established, namely, the trial and disposal of causes or controversies with the least possible expenses to the parties, where the amount involved does not exceed one hundred dollars. In the following cases it has been held that if a party is duly summoned and fails to appear and set up his defense, an appeal will not lie to the district court. Brayton v. County of Delaware, 16 Iowa 44. Trullenger v. Todd, 5 Ore. 36. Long v. Sharp, 5 Ore. 438. See Garnet v. Rodgers, 52 Mo. 145. Sample v. Gilbert, 46 Ind. 444."

This case was approved in Strine v. Kingsbaker, 12 Neb. 52, 10 N.W. 534.

Section 951 of the code requires the defendant, if required by the plaintiff, his agent, or attorney, to file a bill of particulars of his claim of set-off. This may be required in all cases,...