Lloyd v. Reynolds

• Decision Date: 27 March 1889
• Citation: 41 N.W. 1072,26 Neb. 63
• Parties: HENRY W. LLOYD, PLAINTIFF IN ERROR, v. J. F. REYNOLDS, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

41 N.W. 1072

26 Neb. 63

HENRY W. LLOYD, PLAINTIFF IN ERROR, v. J. F. REYNOLDS, DEFENDANT IN ERROR

Supreme Court of Nebraska

March 27, 1889

ERROR to the district court for Cass county. Tried below before CHAPMAN, J.

AFFIRMED.

A Beeson, T. B. & S. J. Stevenson, and A. N. Sullivan, for plaintiff in error, cited: Greenleaf on evidence, 275; Hamilton v. Thrall, 7 Neb. 210; Brondberg v Babbott, 14 Id. 517; O'Leary v. Iskey, 12 Id. 136; Baier v. Humpall, 16 Id. 127; Rothe v. Rothe, 31 Wis. 572; Curtis & Co. v Cutler, 7 Neb. 317; Caldwell v. Dickson, 26 Mo. 61; Thomas v. Thomas, 15 B. Mon. (Ky.) 185; Shepard v. White, 11 Tex. 356; Woodman v. Chesley, 39 Me. 50.

Covell & Polk, for defendant in error, cited: Wyche v. Green, 11 Ga. 159; Kerr on Fraud and Mistake, 417; Coquillard v. Hovey, 23 Neb. 622.

OPINION

MAXWELL, J.

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, permitting 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: "Agreement of lease made this 22d day of June, A. D. 1885, between R. O. Hoback, of Cass county, Nebraska, and J. T. Reynolds, of state and county aforesaid: The said J. T. Reynolds agrees to pay R. O. Hoback five hundred and fifty dollars ($ 550 00/100) for the rent of the said R. O. Hoback's farm and premises, including the growing crop of this year, 1885. Lease to commence June 22d, A. D. 1885, ending March 1st, A. D. 1887, the rent to be paid as follows: one hundred and fifty dollars June 22d, 1885; two hundred dollars August 15th, 1886; two hundred dollars August 15th, 1887; and said R. O. Hoback agrees to put necessary repairs needed; the said J. T. Reynolds agrees to deliver said premises to R. O. Hoback in as good repairs as he received it, subject to unavoidable accidents; said J. T. Reynolds is to have entire possession and control of said premises during the time herein mentioned; said R. O. Hoback agrees to furnish necessary wood for fuel during time of lease; said R. O. Hoback reserves the right to sell or move off said timber to any amount discretionary with said R. O. Hoback. J. T. REYNOLDS.

R. O. HOBACK."

The agreement seems to have been drawn by the parties themselves. In June, 1886, Hoback sold the land in question to one Hammond W. Lloyd for the plaintiff, and indorsed on the back of the agreement for a lease the following: "Having sold...