Langley v. Ashe

• Decision Date: 17 October 1893
• Citation: 56 N.W. 720,38 Neb. 53
• Parties: LANGLEY v. ASHE ET AL.
• Court: Nebraska Supreme Court

38 Neb. 53

56 N.W. 720

LANGLEY

v.ASHE ET AL.

Supreme Court of Nebraska.

Oct. 17, 1893.

Syllabus by the Court.

A petition in equity to enjoin the enforcement of a judgment of a justice of the peace, which does not aver facts from which it appears (1) that the plaintiff has a meritorious defense to the cause of action on which the judgment is based, and (2) that his failure to interpose such defense in the justice court, and to avail himself of an appeal or proceedings in error, was not due to any neglect or default on his part, does not state a cause of action.

Commissioners' decision. Error to district court, Colfax county; Post, Judge.

Action by James Langley against Bernard Ashe and others to restrain the execution of a judgment. From a judgment dismissing the complaint, plaintiff brings error. Affirmed.J. A. Grimison, for plaintiff in error.

George H. Thomas, for defendants in error.

RAGAN, C.

Bernard Ashe sued Charles Cooper and James Langley, before a justice of the peace in Colfax county, on a promissory note. The summons was made returnable January 23, 1889, and was duly served. On January 21st, Ashe and Cooper appeared before the justice, and he, by their consent, continued the case until March 1, 1889. Langley made no appearance whatever in the case, and had no knowledge of this continuance. On March 1, 1889, the justice rendered judgment against Cooper and Langley on said note. April 18, 1889, an execution was issued, and placed in the hands of the sheriff, who levied upon a span of horses belonging to Langley to satisfy judgment. Langley then brought this suit in the district court against Ashe, the judgment creditor, Bohman, the justice of the peace, and Kudrna, the sheriff, alleging the facts above stated; that said judgment of said justice was null and void as against him, (Langley;) and that he had a good defense to said action before said justice of the peace. To this petition the defendants in error filed a general demurrer, which was sustained by the court, and the suit dismissed. Langley excepted, and brings the case here on error.

The only question in the case is, does the petition state sufficient facts to constitute a cause of action? The contention of the plaintiff in error is that as the summons was returnable January 23, 1889, the order of the justice of the peace on January 21, 1889, adjourning the cause to a future date, was a nullity; that the justice of the peace had no jurisdiction at that time to make any order in the case; and that, therefore, the judgment rendered on March 1, 1889, is void. The summons was in all respects in due form of law; was duly served on Langley, and notified him to appear before the justice of the peace on January 23d, and, if he failed to do so, that judgment would be rendered against him for $____. He failed to appear then, or at any other time. Did the adjournment of the case, on the request of Ashe and Cooper, to March 1st, render the judgment against Langley void? We think not. The justice had jurisdiction of the subject-matter and of Langley on January 23d....