Leake v. Gallogly

• Decision Date: 11 June 1892
• Citation: 52 N.W. 824,34 Neb. 857
• Parties: CYRIL A. LEAKE ET AL. v. J. J. GALLOGLY
• Court: Nebraska Supreme Court

52 N.W. 824

34 Neb. 857

CYRIL A. LEAKE ET AL. v. J. J. GALLOGLY

Supreme Court of Nebraska

June 11, 1892

ERROR to the district court for Merrick county. Tried below before POST, J.

AFFIRMED.

R. C Glanville, for plaintiffs in error, cited: Cobbey v Wright, 23 Neb. 255; Tootle, Hosea & Co. v Jones, 19 Id., 588; Fox v. Meacham, 6 Id., 535.

J. W. Sparks, contra, cited: Degering v. Flick, 14 Neb. 449; Strine v. Kaufman, 12 Id., 423; Tootle, Hosea & Co. v. Jones, 19 Id., 589.

NORVAL, J. MAXWELL, CH. J., dissenting.

OPINION

NORVAL, J.

This action was commenced before H. B. Hatch, a justice of the peace of Merrick county, by J. J. Gallogly against plaintiffs in error, to recover the sum of $ 133.90. Judgment was rendered against the defendants below in their absence. Two days later they filed a motion with the justice, under the provisions of section 1001 of the Code of Civil Procedure, to set the judgment aside, upon the ground that the same was rendered in their absence, which application was overruled; thereupon the defendants prosecuted a petition in error to the district court, where the judgment was affirmed.

It is first contended the justice court acquired no jurisdiction over the persons of the defendants, therefore the judgment was erroneous and should have been reversed by the district court. The transcript of the justice docket does not disclose that any summons was served upon the defendant J. H. Leake, while it appears from the returns of the constable on the summons that the writ was served upon Cyril A. Leake on the day of the entry of the judgment, "by his accepting service to appear at 2 o'clock of said day." J. H. Leake not being summoned and not having appeared in the action prior to the rendition of the judgment, it is obvious the justice acquired no jurisdiction over him. The other defendant was not legally served with process, for the reason, among others, that it was made on the day judgment was entered. A summons in a civil action in a justice court, under section 911 of the Civil Code, must be served at least three days before the time set for trial. The defendants, by appearing before the justice and moving to set aside their defaults, submitted themselves to the jurisdiction of the court, and waived all objections to jurisdiction over their persons. (Crowell v. Galloway, 3 Neb. 215; Warren v. Dick, 17 Neb. 241; Tootle v. Jones, 19 Neb. 588.)

The remaining question to be considered is, Did the justice err in refusing to set the judgment aside? The application was made under section 1001 of the Code, which reads as follows:

"Sec. 1001. When judgment shall have been rendered against a defendant in his absence, the same may be set aside upon the following conditions: First--That his motion be made within ten days after such judgment was entered. Second--That he pay or confess judgment for the costs awarded against him. Third--That he notify, in writing, the opposite party, his agent or attorney, or cause it to be done, of the opening of such judgment, and of the time and place of trial, at least five days before the time if the party reside in the county, and if he be not a resident of the county, by leaving a written notice thereof at the office of the justice ten days before the trial."

The record fails to show that plaintiffs in error have complied with the second condition of the section, by either paying the costs, or offering to confess judgment therefor. This requirement of the statute is mandatory, and unless it is complied with by the party seeking to have the judgment rendered against him in his absence opened up, the justice has no authority to set the default aside.

The justice based his refusal to act upon the ground that the judgment was not rendered by default, claiming the defendants had appeared in the cause on the day set for trial. The transcript of the judgment discloses no appearance of the defendants. The fact that the justice placed his decision upon an untenable ground is quite immaterial, so long as it appears that a valid reason did exist for refusing the application. Suppose the motion had not been made within the time prescribed by the above section, and the defendants had brought themselves within all the other of its provisions, would the district court have been justified in reversing the judgment simply because the justice denied the motion on a ground other than that the application was not made in time? To state the proposition is to evoke a negative answer. The reason is, the justice would be without power to act. The case before us is controlled by the same principle. It is no answer to say that the record does not state that the defendants have not paid the costs awarded against them, or confessed judgment therefor. It cannot be presumed that they have done either. Error must affirmatively appear, as all presumptions are in favor of the correctness of the ruling of the justice. Our conclusion is that the lower court did not err in affirming the decision of the justice court. The judgment of the district court is

AFFIRMED.

DISSENT BY: MAXWELL

MAXWELL, CH. J., dissenting.

I am unable to concur in the conclusion reached by Judge Norval and will state the reasons therefor. The amount in controversy is not large, but the principle involved is quite important. The transcript from the justice's docket is as follows:

"On April 25, G. G. Gallogly filed a bill of particulars, marked 'A,' to the amount of $ 141.90; also filed affidavit marked 'B,' praying for order of attachment; also filed affidavit for garnishee, marked 'C,' and attachment bond by plaintiff, signed by A. B. Cady and Pat O'Hern, marked 'D,' which was approved.

"April 25. Order issued, marked 'E,' also an attachment and garnishee notice, marked 'F,' to J. E. Morrill, O. Swensen, and A. J. Bowle & Co., returnable April 28, at 2 o'clock P. M.

"April 28, 2 o'clock. Order and notice to garnishees returned indorsed as served with a true copy upon garnishees J. E. Morrill, O. Swensen, and A. J. Bowle & Co. Plaintiff dissolved attachment and garnishee taxed to him.

"April 28, at 2 o'clock, constable made return of summons upon C. A. Leake, indorsed as follows:

"Served on C. A. Leake April 28, 1888, by copy, he accepting service on the 28th, 1888, to appear at 2 o'clock of said...