Moore v. N. Herron

• Decision Date: 01 September 1885
• Citation: 24 N.W. 425,17 Neb. 697
• Parties: MOORE AND COZINE, PLAINTIFFS IN ERROR, v. N. HERRON, SHERIFF, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

24 N.W. 425

17 Neb. 697

MOORE AND COZINE, PLAINTIFFS IN ERROR, v. N. HERRON, SHERIFF, DEFENDANT IN ERROR

Supreme Court of Nebraska

September 1, 1885

ERROR to the district court for Gage county. Tried below before BROADY, J.

AFFIRMED.

Hardy & McCandless, for plaintiffs in error.

T. D Cobbey, for defendant in error.

OPINION

MAXWELL, J.

This is an action of replevin brought in the county court of Gage county to recover "certain cattle." Summons was issued to the coroner, returnable March 7, 1885, at one o'clock P.M. The property in controversy was taken under the writ and delivered to the plaintiffs upon their giving a sufficient undertaking. As the value of the property exceeded $ 200, the cause was continued to the regular term on the 6th day of April, 1885, at which time it was again continued till the 15th of April. On the 6th of April, the defendant filed a motion for security for costs because the plaintiffs were non-residents. On the 15th of April the cause was continued by agreement till the 22d of that month, and a jury waived in open court. The motion to give security for costs was sustained, and the plaintiffs required to give the same by the 22d inst., or the cause stand dismissed. The 22d of that month being "Arbor Day," and a legal holiday, the cause was continued till the May term of the court commencing May 4th. On May 4th the plaintiffs filed the following paper in said court:

"The plaintiffs, appearing solely and specially for that purpose and none other, here challenge the jurisdiction of the court to proceed further in this action, and allege the following grounds for such challenge, viz.:

"1st. On, to-wit, April 15th, the court continued this case for trial to and set the same for trial on the 22d day of April, 1885, at 10 A.M. of that day, which said day was a legal holiday, whereby the court lost jurisdiction of said action.

"2d. That prior to April 15th, 1885, the defendant filed a motion in this court in this case for an order requiring the plaintiffs to give security for costs in this action on the grounds that they were non-residents of this state and county, a copy of which said motion is hereto attached, marked exhibit 'A,' and made part hereof, and that on, to-wit, April 15th, 1885, the court sustained said motion, and required the plaintiffs to give security for costs, and made the following order and entry in the court's docket of the proceedings of the case. "April 15th, 1885, cause continued until April 22d, 1885, at 10 A.M., by agreement of parties, and jury waived by parties in open court; motion to give securities for costs sustained, and plaintiffs given until April 22d, at 10 A.M., to give security for costs, or case stand dismissed." That plaintiffs were unable to give, and failed and neglected to give, security for costs as required by said order, and that under said order and by operation of law said cause stood dismissed on said 22d day of April, and the court thereby lost jurisdiction to proceed therein.

"3d. There is no cause now pending in this court between these plaintiffs and the defendant.

"4th. The court had no power or authority on the 22d day of April, 1885, to continue this cause to May 4th, 1885, on its own motion, as appears from the record that he did.

"5th. The orders of this court, as appears from the record of this case, made at defendant's request, have worked a dismissal of the case, and thereunder the case now stands dismissed out of court, and the court has no jurisdiction to proceed further therein.

"6th. For all the reasons aforesaid, the plaintiffs now challenge and deny the right of the court to proceed further in the case."

The application was overruled, and the plaintiffs made no further appearance. The case was set down for trial on the 5th of May, 1885. On that day the defendant appeared and filed a motion to dismiss the action, because the plaintiffs have failed to give security for costs as ordered and have failed to prosecute the action, and that the defendant "be allowed to prove the value of the property and damages." The motion was sustained, and the defendant allowed to prove his damages. Evidence was thereupon introduced, and the court found the value of the property to be the sum of $ 319.16, and damages $ 5, and rendered judgment against the plaintiffs for a return of the property or its value. The case was taken on error to the district court, where the judgment of the county court was affirmed.

A great deal of stress is laid upon the adjournment to the 22d of April, 1885, it being a legal holiday. An examination of the statute, however, shows that it is a legal holiday only so far "as regards the presenting for payment or acceptance, and the protesting and giving notice of the dishonor of bills of exchange, bank checks, or promissory notes made after the passage of this act." Comp. Stat., Ch. 41, § 8. The apparent object of the act was to enable all persons so desiring to devote the day to setting out trees, etc. Sec. 38 of chapter 19 of the Comp. Stat., 55, entitled courts, however, provides that "no court can be opened on Sunday, nor can any judicial business be transacted on Sunday or on any legal holiday, except," etc. There was no authority, therefore, to order an adjournment on that day, and the order was a nullity. The court, however, would not thereby lose jurisdiction, as all business undisposed of would be continued until the next term. At the next (May) term the plaintiffs, who had obtained the property under the order of replevin, and were then in possession, objected to the right of the court to proceed and determine the rights of the parties. These objections certainly were made under a misapprehension of the nature of an action of replevin.

Delivery of the property to the plaintiff by virtue of an order of replevin, where a suitable undertaking is...