Crumay v. Henry

• Decision Date: 05 June 1894
• Docket Number: 5242
• Citation: 59 N.W. 369,40 Neb. 716
• Parties: JOHN CRUMAY v. ANDREW J. HENRY
• Court: Nebraska Supreme Court

59 N.W. 369

40 Neb. 716

JOHN CRUMAY v. ANDREW J. HENRY

No. 5242

Supreme Court of Nebraska

June 5, 1894

ERROR from the district court of Howard county. Tried below before COFFIN, J.

REVERSED AND REMANDED.

T. T Bell and W. H. Thompson, for plaintiff in error.

Kendall & Taylor, contra.

OPINION

NORVAL, C. J.

Andrew J. Henry brought this action in the justice court against John Crumay upon an account. Plaintiff recovered a judgment before the justice, and the defendant prosecuted an appeal to the district court of the county, where, on motion of the appellee, the appeal was dismissed on the ground that the defendant did not make sufficient appearance in the justice court to entitle him to appeal said cause.

The only question presented for decision is whether the appeal was properly dismissed. This court has held in several cases that when a defendant fails to appear in an action against him in a justice court, but permits a judgment to be taken against him by default, he cannot appeal therefrom to the district court. In such case his remedy is to have the default set aside under section 1001 of the Code. (Clendenning v. Crawford, 7 Neb. 474; Minneapolis Harvester Works v. Hedges, 11 Neb. 46, 7 N.W. 531; Strine v. Kingsbaker, 12 Neb. 52, 10 N.W 534; Crippen v. Church, 17 Neb. 304, 22 N.W. 567; Western Mutual Benevolent Association v. Pace, 23 Neb. 494, 36 N.W. 816.) Where the defendant has once appeared in the action he is not entitled to have the judgment against him set aside, even though he absented himself on the day of trial; but may appeal. (Strine v. Kaufman, 12 Neb 423, 11 N.W. 867; Raymond v. Strine, 14 Neb. 236, 15 N.W. 350; Andrews v. Mullin, 14 Neb. 248, 15 N.W. 216; Cleghorn v. Waterman, 16 Neb. 226; Smith v. Borden, 22 Neb. 487, 35 N.W. 218; Carr v. Luscher, 35 Neb. 318, 53 N.W. 144; Sullivan v. Benedict, 36 Neb. 409, 54 N.W. 676.) A defendant may appeal where he has appeared at the trial, but offered no affirmative proof (Baier v. Hempall, 16 Neb. 127, 20 N.W. 108); or where he absents himself on the day of trial, but has appeared merely for the purpose of filing a motion for security for costs (Raymond v. Strine, 14 Neb. 236, 15 N.W. 350); or to dissolve an attachment (Crippen v. Church, 17 Neb. 304, 22 N.W. 567); or where he has caused subpoenas to issue for witnesses (Howard Bros. v. Jay, 25 Neb. 279, 41 N.W. 148); or where he has applied for a change of venue, which was denied (Wagner v. Evers, 20 Neb. 183, 29 N.W. 298); or for a continuance, which was granted (Steven v. Nebraska & Iowa Ins. Co., 29 Neb. 187, 45 N.W. 284). Where the defendant appears before the justice for the sole purpose of objecting to the jurisdiction of the court over his person, it is not such an appearance as will entitle him to an appeal from a judgment rendered against him. (McCormick Harvesting Machine Co. v. Schneider, 36 Neb. 206, 54 N.W. 257.)

Some of the earlier cases in this court contain expressions to the effect that an appeal will not lie to the district court from a judgment of a justice of the peace, except a defense on the merits has been interposed, but the later decisions upon the subject state the doctrine broadly if the defendant has at any time made a general appearance in the case before the justice, he may appeal from the judgment rendered against him, notwithstanding he was not present on the day of trial. The later utterances of the court on the question are sound and will be adhered to. In the case under consideration the transcript of the justice's docket shows this entry on the day the summons was returnable:

"Now on this 25th day of June, 1891, this cause came up to be heard upon the bill of particulars of the plaintiff, and the defendant having appeared personally, and having failed to answer said bill of particulars, and having left the court room, making no further appearance in said cause, was heard upon the evidence of the following witnesses for the plaintiff, to-wit: A. J. Henry, Caroline Henry, Neal Lambert, and A. E. Ferris.

"Upon consideration whereof the court finds there is due the plaintiff from the defendant the sum of $ 35.95, and it is therefore considered and adjudged that the plaintiff recover from the defendant the sum of $ 35.95, and the same to draw seven per cent interest from date, and also to recover his costs in the sum of $ 13.50."

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