Brounty v. Daniels

• Decision Date: 10 January 1888
• Parties: BROUNTY v. DANIELS ET AL.
• Court: Nebraska Supreme Court

23 Neb. 162

36 N.W. 463

BROUNTY

v.DANIELS ET AL.

Supreme Court of Nebraska.

January 10, 1888.

Syllabus by the Court.

A. instituted an action in replevin in the county court against B. for the possession of certain property. The cause was tried to the court, and the court found, as a matter of fact, “that the right of property, and the possession of said property, when this action was commenced was in the plaintiff, and assessed his damages in the premises at $35.” No judgment was rendered upon this finding. B. filed an undertaking with the county judge for an appeal to the district court. The cause being certified to that court, A. appeared and moved to dismiss the appeal for the reason that no judgment had been entered in the county court from which an appeal could be taken. His motion was sustained, and the appeal dismissed. Held, that no action could be maintained upon the appeal-bond for the reason that there was no judgment rendered in the county court, and that the attempted appeal was void, and the appeal-bond a nullity.

Error to district court, Boone county; HARRISON, Judge.

The plaintiff, Gunder Hamre, brought an action in replevin, against W. B. Daniels, sheriff, to recover possession of certain personal property. The court found for plaintiff and assessed his damages, but failed to enter up a formal judgment. Soon after defendant filed an appeal-bond, and the cause was certified to the district court, where the plaintiff moved to dismiss the appeal upon the ground that no judgment had been rendered in the county court. The motion was sustained and the appeal dismissed. Plaintiff then brought this action against W. B. Daniels and others, sureties on the appeal bond, in the former case, to recover the amount of his judgment in the county court. Trial and judgment for defendant, and plaintiff, William J. Brounty, as administrator of the estate of Gunder Hamre, deceased, brings error.Allen & Robinson, for plaintiff in error.

Eugene Montgomery, for defendants in error.

REESE, C. J.

This was an action upon an appeal-bond. From the record before us, it appears that an appeal-bond was filed in the county court of Boone county in an action before that time pending, wherein Gunder J Hamre was plaintiff and W. B. Daniels was defendant. The action was in replevin. A trial was had to the court, which resulted in a finding in favor of the plaintiff in the action; the entry in the county court as to the termination of the cause being as follows: “Plaintiff called his witnesses, A. Lousen, Gotfeld Hanelson, Andrew Gullikson, Lary Bary, F. J. Cooney, and himself, who were sworn. The defendant produced no testimony in the case, whereupon, after having duly considered the evidence offered by plaintiff, the court finds that the right to the property and right to possession of said property, when this action was commenced, was in the plaintiff, and assess his damages in the premises at the sum of $35, and also his costs herein expended, taxed at $9.20.” Soon thereafter the defendant in the action filed an appeal-bond in the usual form, with sureties approved by the county judge. The cause was certified to the district court as in cases of appeal, where the plaintiff appeared and moved to dismiss the appeal upon the ground that no judgment had been rendered in the county court. This motion was sustained, and the appeal dismissed. The plaintiff then commenced this action upon the appeal-bond, whereby he sought to recover of the sureties thereon the amount of his alleged judgment in the county court. The cause was tried to the district court without the intervention of a jury, which resulted in finding a judgment in favor of defendant. The petition was in the usual form. The answer consists of a general denial of the allegations not admitted, an admission of the execution of the undertaking set up in the petition, and an allegation that the original suit or appeal was dismissed upon the motion of plaintiff upon the ground that there was no judgment rendered in the county court from which an appeal...