Gudtner v. Kilpatrick

• Decision Date: 23 May 1883
• Citation: 15 N.W. 708,14 Neb. 347
• Parties: DAVID GUDTNER, PLAINTIFF IN ERROR, v. S. D. KILPATRICK AND BYRON BRADT, DEFENDANTS IN ERROR
• Court: Nebraska Supreme Court

15 N.W. 708

14 Neb. 347

DAVID GUDTNER, PLAINTIFF IN ERROR, v. S. D. KILPATRICK AND BYRON BRADT, DEFENDANTS IN ERROR

Supreme Court of Nebraska

May 23, 1883

ERROR to the district court for Gage county. Tried below before WEAVER, J.

REVERSED AND REMANDED.

Bush & Rickards, for plaintiff in error, cited: McConnell v Swales, 2 Scam., 571. Southerland v. Swales, 22 Ill. 91. Bensley v. Mountain, 13 Cal. 306. Rockfelter v. Donally, 8 Cow. 664. 1 Abbott's National Digest, 118. Clendenning v. Crawford, 7 Neb. 474.

A Hardy, for defendants in error, cited: Loomis v McKenzie, 8 N. W. R., 779. Secrest v. Barbee, 17 Ohio St. 426. 7 Wait's Actions and Defenses, 126. Bishop on Contracts, § 458.

OPINION

COBB, J.

This action was brought in the county court of Gage county, and from thence by appeal to the district court for said county, on an appeal bond, of which the following is a copy:

"Know all men by these presents, That we, S.D. Kilpatrick and Byron Bradt, of the county of Gage, Nebraska, are held and firmly bound unto David Gudtner, in the penal sum of $ 360.00, lawful money of the United States, for the payment of which well and truly to be made, we bind ourselves, our heirs, executors, and administrators, jointly and severally and firmly by these presents. Witness our hands and seals this 30th day of June, 1881. The consideration of the above obligation is such that, whereas, the said Daniel Gudtner did on the 20th day of June, 1881, before J. E. Cobbey, county judge in and for Gage county, recover a judgment against the above bounden S.D. Kilpatrick, for the sum of $ 134.53, and $ 25.45 costs of suit, from which said judgment the said S.D. Kilpatrick has taken an appeal to the district court of the county of Gage aforesaid, and the state of Nebraska. Now if the said S.D. Kilpatrick shall prosecute his appeal with effect and without unnecessary delay, and shall pay whatever judgment may be rendered by the court, upon dismissal or trial of said appeal, then the above obligation to be void, otherwise to remain in force and effect." Signed and approved.

The plaintiff, after setting out the recovery of the judgment recited in the said bond, the taking of an appeal from said judgment by the said S.D. Kilpatrick, and the execution and delivery of such bond by him with the said Byron Bradt as surety thereon, alleged that on the -- day of October, 1881, the said appeal was dismissed by the district court on motion of the said plaintiff, and that upon the dismissal of said appeal, the aforesaid judgment became and was in full force and effect in the said county court. Plaintiff further alleged in and by his said petition, that he, the said plaintiff, having caused a transcript of said judgment to be filed in the office of the clerk of the district court, and execution to be issued upon said judgment against the goods and chattels, lands and tenements of the said defendant, S.D. Kilpatrick, which execution had been returned wholly unsatisfied; and that said S.D. Kilpatrick has no goods, lands, or tenements from which said judgment or any part thereof can be made, etc.

The said defendants made answer to said petition, and alleged that the judgment described therein, rendered in the county court, was a judgment taken and rendered by default of the defendant S.D. Kilpatrick, and in his absence, and was a judgment against him solely; that no appeal was ever taken from said judgment, nor could be, for that the same is prohibited by law, and that all proceedings had for that purpose, including the giving of the bond, now in suit, were null and void, etc.; also that the attempted appeal was by the district court dismissed upon motion of the plaintiff, for the reason that the judgment was taken and rendered upon default of and in the absence of the appellant, etc.; and that a dismissal upon said motion was the only judgment therein rendered by said district court, etc.

A trial was had in the district court without the intervention of a jury, upon the record and agreed statement of facts, and there being a judgment for the defendant, the plaintiff brings the cause to this court on error. The agreed statement of facts, signed by the district judge, constitutes the bill of exceptions. From this statement of facts, I extract the following paragraph:

"June 10, no answer being on file, comes plaintiff and claims default of defendant, and the same is allowed, and by consent of parties this action is set for June 20, at 9 o'clock A.M., for trial."

The said statement does not show whether the summons in the said action was personally served on the defendant, nor whether he ever applied to the court to set aside the judgment under the provisions of section 1001 of the civil code.

I think under a fair construction of the syllabus as well as the body of the opinion in the case of Clendenning v. Crawford, 7 Neb. 474, a defendant against whom a judgment rendered "by default and in his absence," has the right to appeal after he has applied to have the judgment set aside, under the provisions of section 1001 of the civil code, and been denied; and that the principal defendant, to make his defense available, even upon his own theory, must have negatived such facts by allegation and proof. It appears by the statement of facts, as above quoted, that the said action was set down for trial June 20th, at 9 o'clock, by consent of parties. This statement, made in a stipulation of facts, on which a cause is to be heard and decided by a court, in the absence of sworn testimony, must be understood as meaning that the defendant, as well as the plaintiff, was present in court, either in person or by attorney, and gave his consent as therein stated. In the case of Strine v. Kaufman, 12 Neb. 423, 11 N.W. 867, this court say in effect, that in a case where a defendant appears in response to a summons, he cannot, by voluntarily absenting himself from the court room, where judgment is about to be rendered against him, bring himself within the provisions of the section in question. And I think that it makes no difference in such case whether he actually makes an answer or defense in the case or not. If he was present, he could have availed himself of whatever answer or defense he could make.

The case of McConnel v. Swailes, 3 Ill. 571, 2 Scam 571, came before the supreme court of Illinois in 1840. It was an action on an appeal bond, taken in a case before a justice of the peace to the circuit court, where the appeal was dismissed, and action brought on the bond against the defendant and his bondsmen. The court in the opinion say: "This court does not entertain a doubt, but that the dismissal of an appeal or certiorari is equivalent to a regular technical affirmance of the judgment, so as to entitle a party to claim a forfeiture of the bond, and have his action therefor. The bond given in such case is conditioned to pay the debt and...