Corbett v. National Bank of Commerce

• Decision Date: 05 March 1895
• Docket Number: 6163
• Citation: 62 N.W. 445,44 Neb. 230
• Parties: CHARLES CORBETT v. NATIONAL BANK OF COMMERCE
• Court: Nebraska Supreme Court

62 N.W. 445

44 Neb. 230

CHARLES CORBETT v. NATIONAL BANK OF COMMERCE

No. 6163

Supreme Court of Nebraska

March 5, 1895

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

AFFIRMED.

B. G Burbank, for plaintiff in error, cited, contending that the judgment should have been set aside: Sec. 602 of the Code; McCann v. McLennan, 3 Neb. 25; Town of Storm Lake v. Iowa Falls & S. C. R. Co., 62 Iowa 218; Callanan v. AEtna Nat. Bank, 50 N.W. [Ia.], 69; Ellis v. Butler, 78 Iowa 632, and citations; Frazier v. Williams, 18 Ind. 417; Elston v Schilling, 7 Rob. [N. Y.], 74; Buell v. Emerich, 85 Cal 116; Code, sec. 99.

OPINION

E. J. Cornish, contra.

RYAN C.

The defendant in error sued the plaintiff in error on two promissory notes made by the latter to the former for the aggregate sum of over twenty thousand dollars. The defense was that these notes had been given to close up a series of loans in which the usurious interest exacted and paid more than equaled the amount of the aforesaid notes. On the 15th day of March, 1892, in the absence of the plaintiff in error, a judgment was rendered against him for the full amount claimed in the petition. This proceeding in error presents for review the refusal of the district court to set aside the above judgment and grant a new trial on a motion for such relief filed April 8, 1892. On the trial bulletin board in February, 1892, of the district court of Douglas county the entries as to this case show: "21-26, Nat. Bk. Commerce v. Chas. Corbett, P. for Cornish; Feby. 19, case marked P.; 23, foot of call; 24, foot of call; 29, P. for Cornish; Mar. 1, P. for Cornish; Mar. 7, foot of call; Mar. 14, foot of call; Mar. 15, the case was tried and marked from call." It is not clear what is meant by the expression, "21-26, Nat. Bk. of Commerce v. Chas. Corbett, P. for Cornish." It was shown by the proofs that the letter "P." was used to indicate that the case was passed on a call of the case for trial. If the expression above specially referred to indicated that on the 21st and 26th of February this case was passed at request of Mr. Cornish, there would be five entries of that kind; at any rate the case was in February passed three times at his instance.

There was filed in support of the above described motion an affidavit of Mr. Breen, an attorney for the defendant, by which it was made to appear that the several postponements at the instance of Mr. Cornish were, by affiant, consented to as courtesies extended Mr. Cornish on his request, and inferentially at least, it was intimated that the defendant should not therefore by Mr. Cornish have been compelled to go to trial when the affiant was necessarily absent from this state. In justification of Mr. Cornish it is but fair to state that the uncontradicted evidence disclosed that when this case was called for trial on February 15, Mr. Cornish stated that he was willing that a trial should be postponed and a temporary adjournment had to enable Mr. Breen to be present. The district judge refused to permit this course to be taken and informed counsel that the case must be disposed of, either by a trial, dismissal, or continuance, whereupon Mr. Cornish elected to have a trial, which thereupon took place with the result above described. Mr. Cornish made affidavit, without contradiction, that on the day following the trial, as he remembered it, he saw Mr. Breen and stated to him that he would make no objection to the granting of a...