Grimson v. Russell

• Citation: 11 Neb. 469,9 N.W. 647
• Parties: GRIMSON v. RUSSELL.
• Decision Date: 06 July 1881
• Court: Nebraska Supreme Court

11 Neb. 469

9 N.W. 647

GRIMSON

v.RUSSELL.

Supreme Court of Nebraska.

Filed July 6, 1881.

Error from Colfax county.

Phelps & Thomas, for plaintiff.

Hoxie & Chambers, for defendant.

LAKE, J.

Our decision in this case must turn upon the fourth point made in the assignment of error, viz.: “That the said court erred in rendering said judgment at the September term of said court, when there was no petition, nor answer, nor demurrer, nor writ, nor any pleading, proceeding, or process in said action on the files of said court.” The fact is, as the parties agree and the record shows, that after trial, and before judgment, the case having been taken under advisement by the judge, all of the pleadings were lost, and have never been found or supplied. Under this circumstance was the rendition of judgment against the defendant below, against his assent, permissible? We think not, for several reasons, of which we will state the following:

In the first place, there is no authority for a court to render judgment against a party defendant except by his consent, without a petition showing the existence of a cause of action against him, and in favor of the plaintiff. And to this petition he must have had the opportunity to answer which the statute gives. The provision for rendering judgment without pleading is found in section 433 of the Civil Code, which declares that “any person indebted, or against whom a cause of action exists, may personally appear in a court of competent jurisdiction, and, with the assent of the creditor, or person having such cause of action, confess judgment therefor, whereupon judgment shall be entered accordingly.” But in such case an ordinary judgment, as upon issue joined, will not suffice, for the next section of the Code requires that “the debt, or cause of action, shall be briefly stated in the judgment, or in a writing, to be filed as a pleading in other actions.” And this statement of the cause of action is essential, as a protection to the debtor against a subsequent prosecution upon the same demands.

Another sufficient reason for holding a judgment so rendered erroneous is that, without the pleadings, or substantial copies thereof, being on file, and copied into the record brought to this court, it is impossible to determine many of the questions that may be raised upon the judgment by the defendant in the action. Did the petition state a cause of action in favor of the plaintiff? Without knowing what that pleading contained, we cannot tell; but if it be conceded that it did, then what issue...