McCormick Harvesting Mach. Co. v. Schneider

• Decision Date: 01 February 1893
• Citation: 36 Neb. 206,54 N.W. 257
• Parties: MCCORMICK HARVESTING MACH. CO. v. SCHNEIDER.
• Court: Nebraska Supreme Court

36 Neb. 206

54 N.W. 257

MCCORMICK HARVESTING MACH. CO.

v.SCHNEIDER.

Supreme Court of Nebraska.

Feb. 1, 1893.

Syllabus by the Court.

1. It is a well-settled rule in this state that a judgment rendered in a county court in the absence of the defendant may be set aside, under the provisions of section 1001 of the Code of Civil Procedure, although the amount claimed by the plaintiff exceeds $200.

2. In an action before a county court the defendant appeared for the sole purpose of objecting to the jurisdiction of the court, which objection was overruled; and, the defendant not appearing further, judgment was rendered against him. Held, that such appearance did not deprive him of the right to have the judgment set aside, under the provisions of said section 1001.

3. The filing of a motion to set aside the default is a waiver of all defects and irregularities in the service of the summons.

Error to district court, Holt county; Kinkaid, Judge.

Action on a judgment by the McCormick Harvesting Machine Company against John S. Schneider. Defendant had judgment, and plaintiff brings error. Affirmed.H. M. Uttley, for plaintiff in error.

G. M. Cleveland, for defendant in error.

NORVAL, J.

This was an action brought by plaintiff in error, in the county court of Holt county, upon a foreign judgment, to recover the sum of $261.45. A summons was issued and placed in the hands of the sheriff for service, who made due return of service thereof upon the defendant, by leaving a true and certified copy of the same, with all indorsements thereon, at the defendant's usual place of residence. Subsequently the defendant appeared before the county court, and filed an affidavit alleging “that the only summons, or copy of summons, served upon or delivered to him, or left at his usual place of residence, in this case, is the purported copy of summons hereto attached as ‘Exhibit A,’ and made part hereof.” Exhibit A is a true copy of the original summons, except that it contained no indorsement of the amount for which judgment was asked. The defendant making no further appearance in the case, judgment was rendered against him for $261.45. Within 10 days thereafter defendant filed a motion, under section 1001 of the Code, to set aside the judgment, which motion was denied. He thereupon prosecuted error to the district court, alleging the following grounds for reversal: (1) The court erred in overruling the objection to the jurisdiction of the court, which objection was on the ground that no copy of the summons was ever served on the defendant in said case in the county court; (2) the court erred in refusing to set aside the default. The district court reversed the judgment of the county court, and this is the error complained of here.

It is a well-settled rule of this court that, where a defendant has entered no appearance in a cause in a justice court, he may, as a matter of right, have the judgment therein entered against him set aside. It has likewise been held that the provisions of section 1001 of the Code, relating to the setting aside of judgments before justices of the peace, applies to causes in the county court, regardless of the amount in dispute. State v. Smith, 11 Neb. 238, 9 N. W. Rep. 92;Tootle v. Jones, 19 Neb. 588, 27 N. W. Rep. 635. But, where a defendant has entered an appearance, he is not entitled to have the judgment set aside, even though he may have been absent on the day of trial. Strine...