Gurske v. Britt

Decision Date10 March 1910
Docket Number15,917
Citation125 N.W. 539,86 Neb. 312
PartiesEDWARD GURSKE, APPELLANT, v. CHARLES W. BRITT, APPELLEE
CourtNebraska Supreme Court

APPEAL from the district court for Douglas county: LEE S. ESTELLE JUDGE. Affirmed.

AFFIRMED.

John M Macfarland, for appellant.

Charles W. Britt and M. O. Cunningham, contra.

OPINION

ROSE, J.

This is a suit in equity to cancel a judgment in favor of Charles W Britt for attorney's fees amounting to $ 180 and against Edward Gurske, his client. The judgment was rendered in Douglas county, June 8, 1903, by William Alstadt, a justice of the peace. The district court after a trial dismissed plaintiff's petition to cancel the judgment, and he appeals to this court.

Under issues properly raised by the pleadings plaintiff urges three reasons for canceling the judgment in controversy. They are as follows: (1) The justice of the peace had no jurisdiction. (2) By fraud the justice of the peace prevented plaintiff herein from making the defense of full payment of Britt's claim. (3) Plaintiff herein was non compos mentis when the judgment was rendered.

1. Want of jurisdiction as a ground of relief is based on the assertion that the summons was not served on plaintiff herein three days before the time set for his appearance, within the meaning of section 911 of the code, which declares: "The summons must be returnable not more than twelve days from its date, and must, unless accompanied with an order to arrest, be served at least three days before the time of appearance." June 5, 1903, the justice issued a summons returnable June 8, 1903, at 9 o'clock A. M., and there was personal service on Gurske June 5, 1903. The record of the justice recites that the case was called June 8, 1903, at 10 o'clock A. M.; that Gurske did not appear at the hour named in the summons nor for an hour thereafter, but made default; that Britt was sworn and examined, and that judgment in his favor followed. It is argued by plaintiff that he only had one full day and fractions of two days to make his appearance, and that, since the law does not recognize fractions of days, he was deprived of three days' notice. To sustain this position plaintiff cites Dale v. Doddridge, 9 Neb. 138, 1 N.W. 999. The notice in that case was dated and served September 4, 1878. It required a tenant to remove from the premises occupied by him within three days after its service, and the court held he was entitled to comply within three days after September 4, or any time during the fifth, sixth and seventh. The opinion was written by Chief Justice MAXWELL. That it does not control a case like the present one is shown by a later opinion in which the same jurist announced the following rule: "In cases where a justice of the peace has cognizance, a summons served three days including the day of service, before the time set for trial, is sufficient to give the justice jurisdiction." White v. German Ins. Co., 15 Neb. 660, 20 N.W. 30. This rule was followed in Messick v. Wigent, 37 Neb. 692, 56 N.W. 493. The justice of the peace, therefore, had jurisdiction.

2. The substance of plaintiff's testimony in support of the averment that he was prevented by fraud of the justice of the peace from making the defense of payment is as follows: About 9:30 A. M., June 8, 1903, the return day of the summons plaintiff had a conversation with the justice in the latter's office. He told the justice he did not owe Britt a cent. The justice told him there was nothing to the case, or that there was no case, that he could go wherever he pleased, that it was foolish to employ a...

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