Crumay v. Henry

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

40 Neb. 716

59 N.W. 369

CRUMAY

v.HENRY.

Supreme Court of Nebraska.

June 5, 1894.

Syllabus by the Court.

A defendant, who has made a general appearance in an action before a justice of the peace, may appeal from a judgment against him, even though he was not present at the trial, and did not contest the case in said court upon the merits.

Error to district court, Howard county; Coffin, Judge.

Action by Andrew J. Henry against John Crumay. An appeal from a judgment in favor of plaintiff, rendered by a justice, was dismissed, and defendant brings error. Reversed.T. T. Bell and W. H. Thompson, for plaintiff in error.

Kendall & Taylor, for defendant in error.

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; 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;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 Bros. 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, 20 N. W. 636, 877;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. Humpall, 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 the motion for security for costs (Raymond Bros. v. Strine, 14 Neb. 236, 15 N. W. 350); or to dissolve an attachment (Crippen v. Church, 17 Neb. 127, 22 N. W. 567); or where he has caused subpoenas to issue for witnesses (Howard 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. Insurance 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. Machine Co. v. Schneider, 36 Neb. 208, 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....