Hermance v. Cunningham

• Decision Date: 16 December 1896
• Citation: 49 Neb. 897,69 N.W. 311
• Parties: HERMANCE v. CUNNINGHAM.
• Court: Nebraska Supreme Court

49 Neb. 897

69 N.W. 311

HERMANCE

v.CUNNINGHAM.

Supreme Court of Nebraska.

Dec. 16, 1896.

Syllabus by the Court.

In a county where there were several judges of the district court who presided over sessions of the court in separate rooms, a cause was, pursuant to the established rules of practice, set for trial before one of the judges, on a fixed date, and notice thereof given, in the manner prescribed by the rules. On the day assigned for trial, the plaintiff was not present, nor were his attorneys. The defendant, in accordance with leave therefor obtained, amended his answer by interlineation, and thereby introduced therein new matter of defense. A trial was immediately had, and judgment rendered favorable to defendant, based on a finding of the truth of the new matter pleaded in the amended answer. The plaintiff, a few days subsequent to the trial, and during the same term of court, filed a motion to set aside the judgment, to be allowed to plead to the amended answer, and be given a trial of the issues. This motion was supported by affidavits, and was overruled. Held, that the record and affidavits disclosed a state of facts sufficient to entitle the plaintiff to the relief asked; hence the motion should have been sustained.

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

Action by O. Hermance against Dennis Cunningham. Judgment for defendant. Plaintiff brings error. Reversed.

Gregory, Day & Day, for plaintiff in error.

Wm. E. Healey, for defendant in error.

HARRISON, J.

It appears that an action on an account was instituted in the district court of Douglas county; that there was an answer on the part of defendant, consisting of a general denial of the allegations of the petition filed by plaintiff. There were several judges of the district court in Douglas county, each of whom held court in a separate room of the courthouse, or some of them in rooms provided in another building in Omaha. Of the rules of practice adopted by the judges, and then in existence in the district court of Douglas county, was the following: “At the close of business each day, the clerk, under the directions of the judges, shall prepare a list of the civil cases subject to be tried on the next day in each branch of the court engaged in the trial of such cases, which list shall be posted for the information of the bar. The list will comprise such number of causes on the equity and jury dockets not beyond the assignment on the general docket as may be deemed expedient, and no others will be called for trial on that day.” This cause was...