Muldoon v. Levi

• Decision Date: 04 January 1889
• Citation: 41 N.W. 280,25 Neb. 457
• Parties: GEORGE P. MULDOON, PLAINTIFF IN ERROR, v. ISAAC LEVI, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

41 N.W. 280

25 Neb. 457

GEORGE P. MULDOON, PLAINTIFF IN ERROR, v. ISAAC LEVI, DEFENDANT IN ERROR

Supreme Court of Nebraska

January 4, 1889

ERROR to the district court for Douglas county. Tried below before DOANE, J.

AFFIRMED.

A. N Ferguson, for plaintiff in error, cited: Smails et al. v White, 4 Neb. 353. Miller v. Hurford, 11 Neb 377. Harland v. Territory, 13 Pacific Rep., 458.

Offut & English, for defendant in error, cited: White v. The City of Lincoln, 5 Neb. 516. Cooley's Constitutional Limitations, 148-178, 5th Ed.

OPINION

REESE, CH. J.

This action was originally instituted in the county court of Douglas county.

On the 30th day of December, 1887, judgment was rendered in favor of defendant in error. Within ten days thereafter an appeal bond was filed by plaintiff in error. On the 3d day of February following he filed his transcript in the district court. Defendant in error thereupon moved for judgment thereon, as in the court below, for the reason that plaintiff in error had failed to perfect his appeal within thirty days, as provided by the act approved March 31st, 1887, section 1011, Compiled Statutes of 1887. This motion was sustained, and a judgment entered similar to that entered by the county court.

Plaintiff in error presents the cause to this court by proceedings in error.

Two questions are presented for decision.

1st. It is contended that the court erred in rendering judgment against plaintiff in error on his transcript, filed by him.

The provisions of the section referred to are as follows:

"If the appellant shall fail to deliver the transcript and other papers, if any, to the clerk, and have his appeal docketed as aforesaid, within thirty days next following the rendition of said judgment, the appellee may, at the first term of the district court after the expiration of thirty days, file a transcript of the proceedings of such justice, and the said cause shall, on motion of said appellee, be docketed; and the court is authorized and required, on his application, either to enter up a judgment in his favor similar to that entered by the justice of the peace, and for all costs that have accrued in the court, and award execution thereon, or the said court may, with the consent of such appellee, dismiss the appeal, at the cost of the appellant, and remand the cause to the justice of the peace to be thereafter proceeded in as if no appeal had been taken," etc.

A reasonable construction of this section would doubtless be that if the appellant, after having filed his appeal bond in the court where the judgment was rendered, shall fail to file a transcript of the judgment in the district court, the appellee may, at any time after the expiration of thirty days, file such transcript, cause the case to be docketed, and a judgment rendered or the appeal dismissed, as he may prefer. But if, after the expiration of the thirty days, the appellant, having lost his right of appeal, should file the transcript, the same action may be taken thereon as though the transcript had been filed by the appellee. The evident purpose of the law is, that a transcript of the judgment of an inferior court must be on file in order that the district court may have jurisdiction to render the judgment or dismiss the case. There can be no good...