Eden Musee Co. v. Yohe

• Court: Nebraska Supreme Court
• Writing for the Court: NORVAL
• Citation: Eden Musee Co. v. Yohe, 37 Neb. 452, 55 N.W. 866 (Neb. 1893)
• Decision Date: 30 June 1893
• Parties: EDEN MUSEE CO. v. YOHE.

37 Neb. 452

55 N.W. 866

EDEN MUSEE CO.

v.YOHE.

Supreme Court of Nebraska.

June 30, 1893.

Syllabus by the Court.

1. A party appealing from a judgment of a justice of the peace to the district court may dismiss his appeal, without the consent of the appellee, at any time before the cause is submitted to the court or jury.

2. The cases of Berggren v. Railroad Co., 37 N. W. Rep. 470, 23 Neb. 620, and Robbins v. Railroad Co., 42 N. W. Rep. 905, 27 Neb. 73, distinguished.

Error to district court, Douglas county; Hopewell, Judge.

Action by William M. Yohe against the Eden Musee Company. Judgment for plaintiff. Defendant brings error. Reversed.Hall, McCulloch & English, for plaintiff in error.

Jas. W. Carr, for defendant in error.

NORVAL, J.

William M. Yohe brought an action before a justice of the peace against the Eden Musee Company on an account for work and labor, and recovered a judgment therein for $50 and costs of suit. The defendant prosecuted an appeal to the district court, where, after the issues were made up, but before the cause was reached for trial, the appellant (plaintiff in error here) filed a motion for leave to dismiss its appeal, which motion was overruled by the district court. Afterwards, judgment was rendered against the appellant, and in favor of the appellee, for the sum of $112.80.

A single question is presented for our consideration, and that is, did the district court err in refusing to permit the plaintiff in error to dismiss its appeal? Our answer is in the affirmative. It is clear, on principle and authority, that an appellant has a perfect right, in an ordinary action, to dismiss his appeal at any time before the cause is submitted to the court or jury, even though his adversary does not consent thereto. Had the appeal been dismissed the rights of the appellee would not have been in the least prejudiced thereby, inasmuch as such a dismissal would have left the case precisely the same as though no appeal had been taken. The appellee could then have enforced his judgment obtained before the justice. If he was dissatisfied with the amount of the judgment there entered, he should have taken and perfected an appeal. Not having done so, he cannot be heard to urge as an objection to the right of the appellant to dismiss his appeal that the recovery was too small. The motion to dismiss the appeal should have been sustained. Elliott, App. Proc. § 534; Bacon v. Lawrence, 26 Ill. 53;Adkinson v. Gahan, 114 Ill. 21, 28 N. E. Rep. 380; State v. Moriarty, 20 Iowa, 595;Latham's Appeal, 9 Wall. 145.

Counsel for defendant in error, in his brief, argues that plaintiff in error did not ask proper relief; that the motion should have prayed for the affirmance of the judgment of the justice, instead of the dismissal of the...