Coad v. Read

• Decision Date: 10 April 1896
• Docket Number: 6432
• Parties: JOHN F. COAD v. GUY R. C. READ
• Court: Nebraska Supreme Court

66 N.W. 1002

48 Neb. 40

JOHN F. COAD v. GUY R. C. READ

No. 6432

Supreme Court of Nebraska

April 10, 1896

ERROR from the district court of Douglas county. Tried below before FERGUSON, J.

AFFIRMED.

Martin Langdon, for plaintiff in error.

Guy R C. Read, contra.

OPINION

RYAN C. J.

This error proceeding, from the district court of Douglas county, is prosecuted to reverse a judgment by it rendered sustaining a judgment of a justice of the peace in favor of the defendant in error against the plaintiff in error, rendered December 14, 1892.

The first ground urged for the reversal of the judgment of the justice of the peace presented in the district court was that the justice of the peace had no jurisdiction of the defendant, for the reason that there was a defect in the copy of the summons, which copy was submitted with the petition in error in the district court. This question was not presented to the justice of the peace on a motion to vacate the judgment or otherwise. The alleged copy of the summons was brought into the record only by a bill of exceptions purporting to have been allowed by the justice of the peace who rendered the judgment complained of, and from this alleged bill of exceptions we are unable to even surmise why there was an attempt to preserve as evidence the aforesaid copy of the summons. If it had been submitted in support of a motion to open the judgment, it is conceivable that it was competent, but it had no such relation to any question presented to the justice of the peace. As it was, this alleged copy of the summons amounted to nothing more than an independent offer of evidence to impeach the judgment rendered by the justice of the peace.

It is insisted that it was erroneous to render on December 14, 1892, a judgment for $ 125 with seven per cent interest thereon from June 6, 1892, for, it is urged, this was not for a present sum definite. This proceeding was to vacate the entire judgment, and not to review a failure upon motion to correct it. As to the sum of $ 125 there was sufficient certainty for every purpose. We need not, therefore, consider the question of interest urged as constituting an uncertain matter, for it cannot be suffered to impair the validity of what is certain. The language of the docket entry made by the justice of the peace, it is said, did not contain a finding which would sustain the judgment rendered. His finding was as follows: "This cause coming on for hearing upon the bill of particulars and the evidence was submitted to me, upon consideration whereof I find in favor of the plaintiff." It is provided by section 1000 of the Code of Civil Procedure: "If the defendant fail to appear at the return day of the summons * * * the cause may proceed at the request of the adverse party, and judgment must be given in conformity with the bill of particulars and proofs." This special provision as to proceedings before a justice of the peace seems from the record quoted to have been literally complied with. By section 1085 of the Code of Civil Procedure it is provided that "the provisions of this Code, which are in their nature applicable, and in respect to which no special provision is made by statute, shall apply to proceedings before justice of the peace." Section 297 of the same Code is in this language: "Upon the trial of question of fact by the court, it shall not be necessary for the court to state its finding, except generally for the plaintiff or defendant, unless one of the parties requests it," etc.

In Crossley v. Steele, 13 Neb. 219, 13 N.W. 175, this court held that the judgment then under consideration was voidable because it was without the support of any finding whatever, and the applicability of sections 297 and 1085 of the Code of Civil Procedure to proceedings before justices of the peace was unequivocally recognized. In the same opinion however, occurred this language: "The necessity of a finding seems to be as great in cases tried before justices of the peace as in cases tried in courts of record. The finding takes the place of the verdict of a jury and shows upon what facts the justice bases his judgment. There must therefore be a finding of facts in all cases tried before a justice of the peace where a jury is waived." This, as will be readily seen, was entirely foreign to the facts involved in the case actually presented and decided. How much value attaches to it by reason of its intrinsic logic will readily appear when we consider separately each step by which was approached the inconsequential result reached by the language above quoted. First, the statute was quoted whereby it was enacted that upon the trials of questions of fact by the court it shall not be necessary for the court to state its findings, except generally for the plaintiff or defendant. This provision was next held applicable to justice of the peace, so that in respect to the necessity of a finding to sustain its judgment every court is bound by the same rule. The next step was to give reasons why any finding whatever was necessary, and these were said to be because a finding of the court takes the place of a verdict of a jury and shows upon what facts the court bases his judgment. The conclusion finally deduced from this course of reasoning was that the statute requires a special finding of facts to sustain a judgment, whether rendered by a justice of the peace or by the district court. In other words, if there was a mere finding for the defendant generally, this would be an insufficient basis for a judgment, because there was not set out as part of this finding a statement of the facts upon which the court based its judgment. To conform to this rule, the statute should have provided that in the trial of all questions of fact by the court it shall be necessary for the court to state its findings, and that a finding generally for plaintiff or defendant shall be insufficient, and the requirement of a request for a finding should have been omitted. It is not necessary to retrace the several steps by which the illogical result indicated was attained, merely for the purpose of discovering what particular deduction was erroneous, for the language criticised was at most mere obiter. Our concern in this matter is solely with a clearly expressed statutory provision whereby it is required only that there shall be a general finding for the plaintiff or for the defendant. As the language quoted from the above cited case exacts more than is required by statute, we have been at some pains to illustrate what might have been done in briefer terms, and that is that this court does not assume to modify unambiguous statutory provisions by judicial construction or rational interpretation. (Stoppert v. Nierle, 45 Neb. 105, 63 N.W. 382.) Counsel for the plaintiff in error have cited Sprick v. Washington County, 3 Neb. 253; Smith v. Silvis, 8 Neb. 164, and Foster v. Devinney, 28 Neb. 416, 44 N.W. 479, in support of the contention that notwithstanding the statute there must, to sustain a judgment, be found specially the facts upon which the judgment is predicated. In neither of these cases was there a finding of any kind; hence, tested by this express provision of the statute, there was lacking a general finding for the plaintiff or defendant. As pointed out by counsel for the defendant in error, the views which we have just expressed were recognized as correct in Haller v. Blaco, 14 Neb. 195, 15 N.W. 348; Degering v. Flick, 14 Neb. 448, ...