Gapen v. Bretternitz

• Decision Date: 27 January 1891
• Citation: 47 N.W. 918,31 Neb. 302
• Parties: FRANK GAPEN v. MAGDALENA BRETTERNITZ ET AL
• Court: Nebraska Supreme Court

47 N.W. 918

31 Neb. 302

FRANK GAPEN v. MAGDALENA BRETTERNITZ ET AL

Supreme Court of Nebraska

January 27, 1891

ERROR to the district court for Lincoln county. Tried below before HAMER, J.

Judgment of the district court reversed, and that of the justice of the peace affirmed.

H. D Rhea, for plaintiff in error, cited: Fillion v State, 5 Neb. 351; Baldwin v. State, 12 Id 61; Stevenson v. Anderson, Id., 86; Credit Foncier v. Rogers, 10 Id., 184.

J. W. Bixler, contra.

OPINION

NORVAL, J.

The plaintiff in error recovered a judgment against the defendant in error before A. J. Blonghee, a justice of the peace in Somerset precinct, Lincoln county, for work and labor in the sum of $ 15 and costs. The defendants prosecuted a petition in error to the district court, where the judgment of the justice of the peace was reversed, and the cause set down in that court for trial. The plaintiff brings the case to this court on error.

It is claimed that the justice erred in sustaining the plaintiff's demurrer to the defendant's answer; in the manner of selecting the jury, and in rendering a work and a labor judgment.

It appears from the transcript that the defendants filed an answer in the justice court to the plaintiff's bill of particulars, alleging that "the said plaintiff obtained a judgment against these defendants in the county court of Lincoln county, Nebraska, in June, 1887, on and for the same cause of action sued on in this suit and against the same parties."

It is well settled that a judgment recovered upon the merits in a court of competent jurisdiction may be pleaded in abatement to a subsequent suit between the same parties on the same cause of action, and that when a party recovers a judgment upon a contract, the original cause of action is merged in the judgment. If the judgment has not been satisfied suit may be brought, and a recovery had upon such judgment. (Eldred v. Michigan Insurance Bank, 17 Wall. 545, 21 L.Ed. 685; Cromwell v. County of Sac, 4 Otto 351, 24 L.Ed. 195; Schuler v. Israel, 7 S.Ct. 648, 30 L.Ed. 707; Freeman on Judgments, sec. 221; Henderson v. Staniford, 105 Mass. 504; Bank v. Wheeler, 28 Conn. 433; Rogers v. Odell, 39 N.H. 452.)

No final judgment was rendered by the county court. The entry reads, " I find there is due from the defendant to the plaintiff the sum of $ 10 and the costs of this action, taxed at $ 10.35." This is nothing more than a finding of the amount due the plaintiff, and a judgment for costs. (Sprick v. Washington Co., 3 Neb. 253; Nichols v. Hail, 5 Neb. 194; Riddle v. Yates, 10 Neb. 510.)

This finding of fact by the county court, upon which no judgment has been rendered, is not a bar to a subsequent suit between the same parties for the same cause of action. (McReady v. Rogers, 1 Neb. 124; Auld v. Smith, 23 Kan. 65; Mitchell v. Insley, 7 P. 201.)

The record does not disclose any error or irregularity in selecting the jury in the justice court. The justice issued a venire for six persons to serve as jurors, who...