Claflin v. Am. Nat. Bank of Omaha

• Decision Date: 22 January 1896
• Citation: 65 N.W. 1056,46 Neb. 884
• Parties: CLAFLIN v. AMERICAN NAT. BANK OF OMAHA ET AL.
• Court: Nebraska Supreme Court

46 Neb. 884

65 N.W. 1056

CLAFLIN

v.AMERICAN NAT. BANK OF OMAHA ET AL.

Supreme Court of Nebraska.

Jan. 22, 1896.

Syllabus by the Court.

1. To obtain a review of a judgment of the district court dismissing an appeal taken from an inferior court, no exception is necessary.

2. A ruling of the district court dismissing an appeal may be reviewed without a motion for a new trial.

3. When an appeal from a justice of the peace to the district court is taken in the time prescribed by law, and both parties appear in the appellate court, and, without objection, file pleadings, and the cause is noticed for trial, it is then too late for the appellee to object to the validity of the appeal.

4. One of several defendants, having separate and distinct defenses, may prosecute an appeal from a justice of the peace to the district court without joining his codefendants. Polk v. Covell, 62 N. W. 240, 43 Neb. 884, followed.

5. When the interests of several defendants are inseparably connected, an appeal by one defendant brings up the entire case. Polk v. Covell, 62 N. W. 240, 43 Neb. 884.

Error to district court, Douglas county; Keysor, Judge.

Action in justice's court by the American National Bank of Omaha against the Omaha Coffin Manufacturing Company and others on a note. From a judgment for plaintiff, defendant Claflin appealed to the district court. There was an order dismissing the appeal, and said defendant brings error. Reversed.A. C. Troup, for plaintiff in error.

Will H. Thompson, for defendants in error.

NORVAL, J.

This suit was instituted before a justice of the peace by the American National Bank of Omaha, one of the defendants in error, against the Omaha Coffin Manufacturing Company, C. A. Claflin, and S. L. Andrews, to recover the sum of $150 and interest upon a promissory note of which the following is a copy: “$150. Omaha, Neb., July 13, 1891. Ninety days after date, we promise to pay to the American National Bank, or order, one hundred and fifty no/100 dollars, for value received, payable at Union National Bank, Omaha, Nebraska, with interest at the rate of ten per cent. per annum from maturity, until paid. Payable _____. Omaha Coffin Mfg. Co. C. A. Claflin, Pres. S. L. Andrews, Secy.” Personal service of summons was had upon the defendants, except Andrews, who was not found in the county, and did not appear in the action. Upon the trial, a judgment for the face of the note and interest was rendered in favor of the bank, and against both the Omaha Coffin Manufacturing Company and Claflin. Within 10 days thereafter, Claflin, for the purpose of prosecuting an appeal from said judgment, filed with the justice an appeal undertaking in the sum of $320, which was more than double the amount of the judgment and costs, and said bond and surety thereon were duly approved. Subsequently, and within the time prescribed by statute, a transcript of the proceedings and judgment was filed in the district court, and the appeal was docketed therein. Several months thereafter, and after pleadings had been filed by both parties, and issues had been joined, the plaintiff filed a motion to dismiss the appeal, alleging as ground therefor: “(1) There is a defect of parties on said appeal. (2) In the court below a joint judgment was rendered against the Omaha Coffin Manufacturing Company and C. A. Claflin, and that said C. A. Claflin only signed the appeal bond herein, and that said C. A. Claflin only is a party to said appeal.” This motion was sustained by the court, and the appeal dismissed. Thereafter, and during the same term, a motion to reinstate the appeal was overruled. Claflin has prosecuted a petition in error to this court, making all the other parties to the action defendants in error, and alleging that there was error in said proceedings: “(1) In sustaining the motion to dismiss the appeal; and (2) in refusing to reinstate said appeal.”

It is argued by counsel for the bank that the order dismissing the appeal cannot here be reviewed, since no motion for a new trial was presented to the court below, and no exception was taken to the decision at the time it was made. No exception is necessary to a final judgment, in order to lay the foundation for its reversal. The order of dismissal being a final judgment, an exception was unnecessary. Morrow v. Sullender, 4 Neb. 374; Black v. Winterstein, 6 Neb. 224; Parrat v. Neligh, 7 Neb. 459; Jones v. Null, 9 Neb. 254, 2 N. W. 350;Welton v. Beltezore, 17 Neb. 399, 23 N. W. 1;Cheney v. Wagner, 30 Neb. 262, 46 N. W. 427.

Several decisions of this court are cited to the point that a motion for a new...