Lloyd v. Reynolds
| Decision Date | 27 March 1889 |
| Citation | 26 Neb. 63,41 N.W. 1072 |
| Parties | LLOYD v. REYNOLDS. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. Where a transcript and petition in error are filed in the supreme court within a year from the date of the rendition of the judgment, and the adverse party voluntarily enters an appearance therein after the expiration of the year, the case will not be dismissed for want of jurisdiction.
2. Motions to dismiss the action should be filed before the preparation and service of briefs in the case; otherwise ordinarily they will be disregarded.
3. One H. entered into an agreement with R. to rent his farm, and received $150 for the year 1885; also a note for $200, which the testimony tended to show was for the rent for the year 1886; and a second note for $200, which the testimony tended to show was for the rent for the year 1887. In 1886 H. sold said farm to L., who had full notice of the rights of the lessee. In an action of forcible entry and detainer brought by L. against the lessee, it appeared that by mistake the lease was made to terminate March 1, 1887, instead of March 1, 1888, as intended by the parties. It also appeared that H. had delivered the note due in 1887 for rent to L., who retained the same. Held, that while a justice of the peace or county judge could not grant affirmative relief reforming the contract, yet he could receive proof of the mistake for the purpose of showing that the defendant was not wrongfully and unlawfully in possession of the premises.
4. Held, that the verdict was clearly sustained by the evidence, and that there was no error in the record.
Error to district court, Cass county; CHAPMAN, Judge.A. Beeson, T. B. & S. J. Stevenson, and A. N. Sullivan, for plaintiff in error.
Covell & Polk, for defendant in error.
This is an action of forcible entry and detainer, brought by the plaintiff against the defendant in the county court of Cass county, where judgment was rendered. An appeal was taken to the district court, where, on the trial, a verdict was returned in favor of the defendant, and, a motion for a new trial having been overruled, judgment was entered on the verdict.
The attorneys for the defendant now move to dismiss the case, because no summons in error was issued and served within a year from the rendition of the judgment in the court below. The record shows that judgment was entered in that court on the 10th day of December, 1887; that a transcript and petition in error were filed in this court on the 10th day of October, 1888; that on the 17th day of December, 1888, the attorneys of the defendant entered into the following stipulation: “The issuance and service of summons in error in this cause is hereby waived by the defendant in error.” This was duly signed. Briefs on behalf of the plaintiff and defendant were thereupon prepared and filed, and are now before us. The transcript and petition in error were properly filed in the court within the year, and the defendant could lawfully enter his appearance herein after the expiration of that time. In a number of cases this court has held that objections to the jurisdiction of the court must be made at an early period in the proceedings or they will be waived. There is no justice in subjecting a party to the costs incident to preparing briefs and appearing to argue a case upon the supposition that it is to be tried upon the errors assigned in the petition in error, and then, instead of such hearing, permit the adverse party, for the first time, to raise the question of jurisdiction. When a transcript and petition in error are filed within the time required by law, the adverse party may enter a voluntary appearance after that time; and this may be done in any of the forms known to the law. The first objection therefore is overruled.
The testimony tends to show that in the year 1885 one R. O. Hoback was possessed of certain lands in Cass county, and that he entered into an agreement with the defendant to lease the same to him, as follows: ...
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