Dryfus v. Moline, Milburn & Stoddard Company
| Decision Date | 03 January 1895 |
| Docket Number | 5326 |
| Citation | 61 N.W. 599,43 Neb. 233 |
| Parties | W. N. DRYFUS v. MOLINE, MILBURN & STODDARD COMPANY |
| Court | Nebraska Supreme Court |
ERROR from the district court of Custer county. Tried below before HAMER, J.
AFFIRMED.
Judson C. Porter, for plaintiff in error.
Darnall & Kirkpatrick, contra.
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. Dryfus, a summons being issued returnable on November 3, 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 2, 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 9, 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 22, 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 31, at which time, on motion of the defendant, the hearing was again adjourned to January 29, 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 to the court upon the merits, 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. An exception was 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 a review of the cause in this court, since only questions of law were presented by the petition in error to the district court for determination. (Newlove v. Woodward, 9 Neb. 502, 4 N.W. 237; Leach v. Sutphen, 11 Neb. 527, 10 N.W 409.) The grounds set up on the motion for a new trial were two: 1. Surprise that the justice's transcript "contained erroneous entries which were added and attached thereto without the knowledge of the plaintiff, and which this plaintiff had no opportunity of having corrected, the nature and character of which erroneous...
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