M. K. Goetz Brewing Company v. Waln

• Decision Date: 18 December 1912
• Docket Number: 16,854
• Citation: 139 N.W. 230,92 Neb. 614
• Parties: M. K. GOETZ BREWING COMPANY, APPELLEE, v. FRANK M. WALN, APPELLANT
• Court: Nebraska Supreme Court

139 N.W. 230

92 Neb. 614

M. K. GOETZ BREWING COMPANY, APPELLEE, v. FRANK M. WALN, APPELLANT

No. 16,854

Supreme Court of Nebraska

December 18, 1912

APPEAL from the district court for Gosper county: ROBERT C. ORR JUDGE. Affirmed.

AFFIRMED.

O. E Bozarth and W. S. Morlan, for appellant.

G Norberg and Lambe & Butler, contra.

OPINION

REESE, C. J.

This action was commenced in the county court of Gosper county for the purpose of collecting the amount alleged to be due on certain promissory notes executed by defendant to plaintiff. The execution and delivery of the notes being admitted by defendant, both in his answer and testimony, they need not be further described here. Plaintiff failed to obtain judgment in the county court, and sought to appeal to the district court. The county judge prepared a transcript of the proceedings, and the same was filed in the office of the clerk of the district court within the time allowed by law for taking appeals, but the county judge failed to certify to the same. Upon the discovery of this omission the district court, on motion of plaintiff, and over the objection and exception of defendant, directed the transcript to be remanded to the county judge for proper certification. The transcript was returned to the district court duly certified, but the time for appealing had expired. Defendant then objected to the filing of the amended transcript. The objection was overruled, to which he excepted. It was then discovered that the transcript did not contain a formal judgment dismissing plaintiff's action, and, upon the application of plaintiff, and over the objection and exception of defendant, the transcript was again returned to the county court for the entry of a nunc pro tunc order and judgment in order to conform to the fact. The nunc pro tunc entry was made, the judge certifying that at the close of the trial he did announce and rendered judgment dismissing the suit, but had neglected to so record the fact in his docket. The cause was then held for trial in the district court over the objection of defendant; the claim being that the district court had no jurisdiction, and that the appeal was not perfected within the time required by law. To say that the county judge was guilty of inexcusable gross carelessness in the whole matter, from which much annoyance, expense and delay resulted, would be but a mild reflection upon his conduct. It is now contended that the district court never acquired jurisdiction over the case, owing to the failure of the county judge to present a "certified transcript" as is required by section 1008 of the code. It is apparent from this record that the failure of the county judge to certify to the transcript was not the fault of plaintiff, and it is the well-settled law of this state that a party cannot be deprived of his appeal by the wrong of the officer, when he is without fault himself. In making the order for the proper certification of the transcript, the court was well within the power conferred by section 28, ch. 19, Comp. St. 1911, which provides: "The district court may, by rule, compel an inferior court or board to allow an appeal, or to make or amend records according to law, either by correcting an evident mistake or supplying an evident omission."

In defendant's answer filed in the county court, he admitted "the execution and delivery of said notes as set out in said petition," of which there were five, amounting on their face to $ 700, but upon which there were certain credits allowed, amounting to $ 132.35. The transcript as originally made shows, among other things, the following as occurring at the trial: The five promissory notes were introduced in evidence and were objected to "for the reason the notes have not proper and sufficient verification. Objection sustained by the court, and defendant rests case. It is therefore considered by me that the defendant have judgment against the plaintiff in this action in the sum of $ 8.90 his costs." This entry is under date of February 12, 1907. A showing was made to the district court that this entry was not in accordance with the facts, in that the proper judgment was announced from the bench dismissing the suit, whereupon the court ordered that the transcript be referred back for a proper certification as to the fact. The county judge's transcript, under date of November 9, 1907, shows a motion was made by plaintiff to correct the record "by entering judgment in said action according to the facts nunc pro tunc as of February 12, 1907." It is recited that due notice of the hearing of the motion was given, and that the hearing was adjourned to November 23, when the parties appeared, and defendant filed a special appearance to object to the jurisdiction of the court, which, "after full argument by attorneys upon both sides," was overruled, and the court "finds of his own knowledge" that the judgment was that the action be dismissed, as announced at the completion of the trial, but that, in making up the record, it was inadvertently omitted. The judgment is then rendered in proper legal form. This is dated November 30, 1907, and was probably filed in the office of the clerk of the district court, as it is contained in the rambling and imperfect record presented here. Objections to that record were presented to the district court and overruled, when pleadings were filed, and the cause tried to a jury on the merits on the 25th day of January, 1910. Less attention should have been given to this subject by us, were it not for the fact that it is discussed extensively in the briefs.

The amended petition filed in the district court is in the usual form for declaring upon promissory notes. The answer thereto is of considerable length, but can be fairly summarized to be that plaintiff, to induce defendant to handle its beer at Swanton, in Saline county, advanced the money necessary to procure a liquor license for the year 1904, and for which the notes were given, and defendant entered upon the business at said place; that, on account of the inferior quality of the beer furnished by plaintiff, the saloon business was not a success, but a failure, by reason of which defendant was caused to lose $ 1,000; that defendant sold his saloon to one Mitlewski, by the consent and approval of plaintiff, Mitlewski to assume said indebtedness of de...