Moise v. Powell

• Decision Date: 15 May 1894
• Docket Number: 4778
• Citation: 59 N.W. 79,40 Neb. 671
• Parties: WALTER MOISE v. W. C. POWELL
• Court: Nebraska Supreme Court

59 N.W. 79

40 Neb. 671

WALTER MOISE v. W. C. POWELL

No. 4778

Supreme Court of Nebraska

May 15, 1894

ERROR from the district court of Kearney county. Tried below before GASLIN, J.

AFFIRMED.

St Clair & McPheely, for plaintiff in error, cited Minneapolis Harvester Works v. Hedges, 11 Neb. 46.

Godfrey & Godfrey, contra.

No briefs on behalf of defendant in error.

OPINION

IRVINE, C.

The defendant in error Powell sued the plaintiff in error Moise before a justice of the peace for damages alleged to have been sustained by the injury of defendant in error's buggy while in the possession of plaintiff in error. The prayer was for judgment for $ 20. There was a trial to a jury and a verdict and judgment for the defendant in error for $ 20. The plaintiff in error filed an undertaking in appeal, and thereafter, within the statutory time, filed a transcript in the district court for the purpose of taking an appeal. Later, the district court, on application of the defendant in error, gave him leave to file his petition in twenty days from the date of the order, which was beyond the statutory time for filing a petition. Still later, the defendant in error moved to dismiss the appeal, for the reason that the amount claimed by him did not exceed the sum of $ 20, that the cause was tried to a jury in the justice court, and that the action was not appealable. This motion was sustained, and from that order error is prosecuted.

Section 985 of the Code of Civil Procedure is as follows: "If either the plaintiff or defendant, in his bill of particulars, claims more than $ 20, the case may be appealed to the district court; but if neither party demands a greater sum than $ 20, and the case is tried by a jury, there shall be no appeal." Section 1017 is as follows: "Appeals in the following cases shall not be allowed: * * * Second--In jury trials, where neither party claims in his bill of particulars a sum exceeding $ 20." * * * It was, doubtless, under these statutory provisions that the district judge dismissed the appeal.

In the brief of the plaintiff in error it is suggested that the appearance of the defendant in error in the district court and his obtaining an extension of time to file his petition, waived any defect of jurisdiction. It is proper to say, however, that counsel in that connection express very frankly their own doubt as to the soundness of that suggestion, but they cite Minneapolis Harvester Works v. Hedges, 11 Neb. 46, 7 N.W. 531, in support of that view. In that case it was held that where the defendant, in an action before a justice of the peace, had failed to appear and then undertook to appeal from a judgment rendered by default, the appellee waived the objection to the appeal by appearing in the district court and filing pleadings to the merits. Prior thereto it had been held (Clendenning v. Crawford, 7 Neb. 474) that because a judgment rendered by a justice of the peace in the absence of a party may be set aside upon motion for that purpose, no appeal would lie until after such a motion had been made. This was upon the principle that the setting aside of the judgment was a complete remedy in the justice's court and was a special provision giving a remedy other than appeal, and that this remedy must be exhausted before an appeal could be taken. The district court was not excluded by statute from exercising jurisdiction of appeals in such cases, but the right to appeal was denied because the remedy in the inferior court had not been exhausted. Therefore, Minneapolis Harvester Works v. Hedges simply held that joining issues in the appellate proceedings constituted a waiver of the appellant's right to insist upon that rule. In this case the statute absolutely forbids an appeal where the amount claimed is not more than $ 20, and the case was tried to a jury. Therefore, in such a case the district court has no jurisdiction of the subject-matter, and the appellee, by appearing,...