Dreyfus v. Moline, Milburn & Stoddard Co.

• Decision Date: 03 January 1895
• Citation: 61 N.W. 599,43 Neb. 233
• Court: Nebraska Supreme Court
• Parties: DREYFUS v. MOLINE, MILBURN & STODDARD CO.

43 Neb. 233

61 N.W. 599

DREYFUS

v.MOLINE, MILBURN & STODDARD CO.

Supreme Court of Nebraska.

Jan. 3, 1895.

Syllabus by the Court.

1. No motion for a new trial is necessary, in a cause taken from a justice court by proceedings in error, in order to have the judgment reviewed in this court.

2. Where a defendant in a justice court, after the rendition of a judgment against him, appears therein, and moves a retaxation of the costs, it constitutes a general appearance in the cause, and is a waiver of all objections to jurisdiction over his person.

3. The record of the proceedings and judgment in a justice court, as embodied in a duly-certified transcript, imports absolute verity, and cannot be contradicted by extrinsic evidence in the appellate court. Sullivan v. Benedict, 54 N. W. 676, 36 Neb. 409, followed.

Error to district court, Custer county; Hamer, Judge.

Action by Moline, Milburn & Stoddard Company against W. N. Dreyfus. Judgment for plaintiff was rendered by a justice of the peace. On appeal, the district court affirmed the judgment, over defendant's objection that the justice lost jurisdiction of the action, and defendant brings error. Affirmed.Judson C. Porter, for plaintiff in error.

Darnall & Kirkpatrick, for defendant in error.

NORVAL, C. J.

This suit was instituted before a justice of the peace on the 29th day of October, 1890, by the Moline, Milburn & Stoddard Company, against W. N. Dreyfus; a summons being issued returnable on November 3d, which was returned duly served upon the defendant. On the return day both parties appeared, each filing a bill of particulars, and on application of the defendant a continuance was had until December 2d, when there was a trial to a jury, who, being unable to agree, were discharged; and the case was adjourned by the justice to December 9th, when, the defendant having failed to appear at the hour fixed for the trial, or within one hour thereafter, the plaintiff demanded a trial, which was had to the court, with a finding and judgment against the defendant in the sum of $151.25. On the 15th day of December, 1890, the defendant filed a motion before the justice to set aside said judgment, but upon what ground does not appear. The hearing upon said motion, by agreement of parties, was set for December 22d, when, the plaintiff and defendant being present, the justice sustained said motion, set aside said judgment, and set the cause down for trial on December 31st, at which time, on motion of the defendant, the hearing was again adjourned to January 28, 1891, at 10 o'clock a. m. On said date the cause was called for trial,--the plaintiff being present by its attorneys, and the defendant by his attorney,--whereupon the defendant objected to the jurisdiction of the justice, for the reason “that the case was not called at the hour set for trial, 10 o'clock a. m., and for one hour thereafter, and it appearing to the court that the same was not called until 11.45 a. m., standard time, and the court being unable to appear and call said cause, being fully advised in the premises, doth overrule said objection, whereupon the defendant refused further to appear.” There was a trial upon the merits to the court, which resulted in a judgment in favor of the plaintiff in the sum of $152.54 and costs. On February 5, 1891, the defendant appeared before the justice, and moved that the jury costs be retaxed, which motion was sustained by the justice. Subsequently, the defendant filed a petition in error in the district court to reverse said judgment, alleging that the justice erred in overruling his challenge to the jurisdiction of said cause, and rendering judgment therein. At the hearing the district court found that there was no error in said judgment and proceedings, and entered a judgment of affirmance. Whereupon, the plaintiff in error presented a motion for a new trial, which was overruled by the court, and an exception taken to the decision. The cause was removed to this court by petition in error.

The denying of the motion for a new trial by the district court, upon the affirmance of the judgment, is assigned as error. Such a motion was wholly unnecessary to obtain...