Cleghorn v. Waterman

• Decision Date: 24 October 1884
• Citation: 16 Neb. 226,20 N.W. 877
• Parties: CLEGHORN v. WATERMAN.
• Court: Nebraska Supreme Court

16 Neb. 226

20 N.W. 877

CLEGHORN

v.WATERMAN.

Supreme Court of Nebraska.

Filed October 24, 1884.

MAXWELL, J., dissenting.¹

I am unable to give my assent to that portion of the opinion of the majority of the court which holds that the entry on the docket of the justice that “the defendant did not appear in person, and his attorney departed before the trial was had,” was improper, and of no effect. Section 1036 of the Code requires the justice to enter on his docket-- First, the title of every action in which the writ is served, or where the parties appear voluntarily; second, the date of the writ, the time of its return, and if an order to arrest the defendant or attach property was made, such fact must be stated, together with the affidavit upon which such order was made; third, the filing of the bill of particulars of either party, and the nature thereof, and, when not of too great length, the same shall be entered at length on the docket; fourth, which of the parties, if either of them, appear at the trial, etc. In the docket entry objected to, the justice stated that the defendant's attorney appeared at the time set for trial and filed an answer, and then departed before the trial. The filing of the answer alone did not waive the requirement of the statute that the defendant shall appear at the trial and contest the plaintiff's right to recover, in order that, if aggrieved by the judgment, he may appeal to the district court. Justices' courts are provided for the trial of minor causes, and if a party, when served with summons, upon which is indorsed the amount for which the plaintiff will take judgment if he fail to appear, permits judgment to be taken against himself without resisting the claim, the presumption is it is just, and that there is no defense. If a party has been prevented from making his defense, the law grants him the right to have the judgment set aside, and to make his defense. But if a defendant, by merely filing an answer, may then absent himself from the trial and still appeal, then he need not contest his right before the justice, and the case of Clendenning v. Crawford, 7 Neb. 474, and other cases following and approving that decision, are practically overruled, although cited with approval in the majority opinion. If a change is made it should be done by the legislature, and not by the court.

The judgment should be affirmed.

1. For majority opinion see 20 N.W. 636.