Baier v. Hempall

• Decision Date: 29 May 1884
• Citation: 20 N.W. 108,16 Neb. 127
• Parties: JOHN BAIER, PLAINTIFF IN ERROR, v. WENCEL HUMPALL, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

20 N.W. 108

16 Neb. 127

JOHN BAIER, PLAINTIFF IN ERROR, v. WENCEL HUMPALL, DEFENDANT IN ERROR

Supreme Court of Nebraska

May 29, 1884

ERROR to the district court for Saline county. Tried below before WEAVER, J. Baier was defendant in the court below and before the justice.

REVERSED AND REMANDED.

M. B C. True, for plaintiff in error.

J. H Grimm, for defendant in error.

OPINION

MAXWELL, J.

This is an action of replevin commenced before a justice of the peace. On the trial of the cause the justice rendered judgment in favor of the defendant. The plaintiff then appealed to the district court, where, on motion of the defendant, the appeal was dismissed, the grounds of the motion being that the plaintiff "failed, neglected, and refused to interpose his defense in the court below, as is shown by the transcript." The motion was sustained and the cause dismissed. This is assigned for error in this court.

The docket entry, so far as it relates to appearance of the parties, is as follows: "September 12, 1882, 10 o'clock A.M., cause came on to be heard, both plaintiff and defendant in court and expressly waive their right of trial by jury and ask for a trial by this court. Trial had. Plaintiff Wencel Humpall called and sworn. The defendant failed to introduce testimony," etc.

In Clendenning v. Crawford, 7 Neb. 474, it was held that a party permitting a judgment to be taken against him by default must have the default set aside and defend the cause on the merits before he could appeal to the district court. Strine v. Kingsbaker, 12 Neb. 52. Brayton v County of Delaware, 16 Iowa 44. Trullenger v. Todd, 5 Ore. 36. Long v. Sharp, 5 Ore. 438. The reason assigned being that justices' courts are established for the trial and disposal of minor causes with as little delay and expense to the parties as possible. But in establishing this rule it was not intended to prevent a party from taking an appeal who had appeared and made his defense in the justice court. The word "defense" applies to every matter tending to diminish or entirely defeat the plaintiff's cause of action. This perhaps may be shown by the cross-examination of the plaintiff's witnesses. Even if a defendant has no affirmative proof to offer, he has the right to cross-examine the witnesses of the adverse party, and in this way, if he can, diminish or defeat a recovery against himself. And when he does so we can see no good reason why he should...