Minneapolis Harvester Works v. Hedges

• Decision Date: 09 December 1880
• Parties: MINNEAPOLIS HARVESTER WORKS v. HEDGES.
• Court: Nebraska Supreme Court

11 Neb. 46

7 N.W. 531

MINNEAPOLIS HARVESTER WORKS

v.HEDGES.

Supreme Court of Nebraska.

Filed December 9, 1880.

D. G. Hull and R. D. Stearns, for plaintiff.

M. H. Sessions, for defendant.

MAXWELL, C. J.

In the year 1877 the plaintiff recovered two judgments by default against the defendant, before a justice of the peace. The defendant appealed to the district court. In the district court the following stipulation was filed:

“ Minneapolis Harvester Works v. Ira Hedges.

Minneapolis Harvester Works v. Ira Hedges.

IN JUSTICE'S COURT, OCTOBER 10, 1877. STIPULATION.

It is hereby stipulated and agreed that the above-entitled suits be consolidated and entered upon appeal in district court as one case, and tried in district court in and for Lancaster county as one case.”

--the stipulation being signed by the attorneys for the parties. On the tenth day of December of that year the plaintiff filed a petition in the district court upon both causes of action, and on the twenty-first of January thereafter an answer was filed, the verification being waived by the plaintiff's attorney. The cause was tried at the March, 1879, term of the district court, and a verdict returned for the defendant, upon which judgment was rendered. The plaintiff brings the cause into this court by petition in error. After the jury had been empanelled and sworn, but before the witnesses were sworn, the attorney for the plaintiff objected to the jurisdiction of the court in the following manner: “I now make objection to the jurisdiction of the court on the ground that in this cause a default was taken in the court below against the defendant and he cannot appeal.” This objection was overruled, to which the plaintiff excepted, and now assigns the same for error.

In the case of Clendenning v. Crawford, 7 Neb. 474, it was held that an appeal would not lie to the district court from the judgment of a justice of the peace taken by default. The party in default must move to set the default aside and have the cause tried on the merits; and we adhere to that decision. But this is a mere personal privilege and may be waived. The court has jurisdiction of the subject-matter, and the parties may, without objection, appear and litigate the matters in controversy, and will be bound by the judgment. It is sometimes said that consent will not confer jurisdiction. This is true of the subject-matter, but not as a rule as to the parties. In the case of Kane v. The Union Pacific Railroad, 5 Neb. 105, the plaintiff, as treasurer of Cheyenne county, had collected illegal fees from the company, which brought an action in Douglas county to recover the same. Kane demurred to the petition on the ground that the facts stated therein were not sufficient to constitute a cause of action. The demurrer was overruled. Kane thereupon filed an answer, alleging that the fees and penalties exacted by him were legal and authorized by law, and that the district court of Douglas county had not jurisdiction of the case. It was held that, there having been an appearance and a plea to the merits, there was a waiver of all objections to the jurisdiction. Fee v. Big Sand. Iron Co. 13 Ohio St. 563;Harrington v. Heath, 15 Ohio, 483. An appeal means the taking of a cause and its final determination from one court or tribunal to another. Powell on Appellate Proceedings § 10. When complete it has the effect to vacate the judgment of the court below and place the case for trial on its merits in the appellate court. If a party objects to such appeal, he must take the necessary steps to have it dismissed. He cannot be permitted to treat the appeal as binding and valid, and without objection file the necessary pleadings to his part to make up the issues in the case, and raise the objection for the first time at the trial. Such conduct is trifling with the court. Goodrich v. Omaha, 7 N. W. REP. 442, 2 Neb. 122. The objection to the jurisdiction was therefore properly overruled.

The action was brought upon two promissory notes, each for the sum of $45, with interest. The notes were made by Hedges in favor of J. L. Spink & Co., and assigned to the plaintiff, which claims as an innocent purchaser. The testimony shows that the firm of Spink & Co. was merged in the corporation known as the “Minneapolis Harvester Works,” in September, 1876, and all the...