Rowland v. Shephard

• Decision Date: 04 October 1889
• Citation: 43 N.W. 344,27 Neb. 494
• Parties: HENRY D. ROWLAND v. JAMES F. SHEPHARD
• Court: Nebraska Supreme Court

43 N.W. 344

27 Neb. 494

HENRY D. ROWLAND v. JAMES F. SHEPHARD

Supreme Court of Nebraska

October 4, 1889

ERROR to the district court for Sheridan county. Tried below before KINKAID, J.

AFFIRMED.

W. H Westover, and J. C. Johnston, for plaintiff in error:

The overruling of the motion for continuance by the county court was an abuse of discretion, which is sufficient ground for a new trial. (Ingalls v. Noble, 14 Neb. 272; Singer Mfg. Co. v. McAllister, 22 Id., 362.) The affidavit was sufficient, because it stated the evidence intended under the rule in Jameson v. Butler, 1 Neb 118; Williams v. State, 6 Id., 338; Johnson v Dinsmore, 11 Id., 393; also because it is specific, and an indictment for perjury will lie if the facts stated are not true. (Ingalls v. Noble, supra.) Service should have been had upon the firm; not upon plaintiff in error individually. (Herron v. Cole, 25 Neb. 692.)

W. W. Wood, and J. M. Stewart, for defendant in error:

The judgment was rendered against the defendants; not against Rowland and the firm. Defendant Collins, by appearing generally, waived any rights he may have had because he was not served with summons. The judgment of the county court was against the partners, while the appellate proceedings were by Rowland only; which is contrary to the rule in Wolf v. Murphy, 21 Neb. 472. The affidavit for continuance is insufficient in the matter of locating the witness Gamble. (Newman v. State, 22 Neb. 358.) The application for continuance was a matter of discretion, and the rights of the defendant were not prejudiced by the refusal to grant it.

OPINION

REESE, CH. J.

This action was instituted before the county judge of Sheridan county by defendant in error against "Charles C. Collins and Henry Rowland, in business under the firm name of Collins & Rowland." The action was for the recovery of the sum of $ 138.51, which was alleged to be due defendant in error from Collins & Rowland for labor, hauling lumber, etc. The summons was issued returnable on the 13th day of August, 1887, and was returned "served upon Henry Rowland by delivering to him a certified copy of the summons with all the indorsements thereon, C. C. Collins not being found in the county." On the day named as return day the parties appeared and by mutual consent the cause was continued until October 27, 1887. On that day, at the hour fixed, the parties again appeared, when plaintiff in error filed a motion for continuance until the 1st day of October of the same year. This motion was overruled, but to the ruling no exception appears to have been taken by the plaintiff in error. Plaintiff in error then objected to the introduction of any testimony, for the reason that the service as returned did not show service on the firm of Collins & Rowland. This objection was overruled.

A trial was had, which resulted in a finding in favor of the plaintiff in the action and judgment in his favor for the sum of $ 154.51, together with costs of the suit. The cause was then removed to the district court by proceedings in error. The assignment of error being: "First, the court erred in overruling the defendant's motion for continuance; second, the court erred in taking testimony to contradict the allegations of defendant's affidavit filed in support of his motion for a continuance; and third, the court erred in overruling defendant's objection to the introduction of testimony." Upon a hearing in the district court the judgment of the county court was affirmed. Plaintiff now prosecutes error to this court, assigning the ruling of the district court as error.

The first question in logical order is as to the ruling of the county court on the motion for a continuance. The failure to take an exception to the decision of the county court would probably deprive plaintiff in error of the right to an examination of this question. But aside from this, we think the district court did not err in affirming the decision of the county judge. The affidavit for continuance was as follows:

"Henry D. Rowland, being first duly sworn, deposes and says that he is one of the defendants in the above entitled case; that he cannot safely proceed to trial in said cause on account of the absence from Sheridan county of one C. A. Gamble, who is now at some place in Iowa, and whose testimony is material to this defendant's defense in the above case:

"Affiant further swears that at the time the work was done, which is mentioned in plaintiff's petition and bill of particulars, said Gamble kept the time-book, said time-book being still in the possession of said Gamble, and that said book contains information concerning the subject-matter of plaintiff's cause of action which this defendant can procure at no other place.

"Affiant further says that said Gamble knows, and, when his evidence can be procured, he will swear, that the plaintiff did not work for the firm of Collins & Rowland, and that the work he did for one C. C. Collins, which affiant presumes was charged against the firm of Collins & Rowland, was contracted for by said plaintiff with said C. C. Collins at the rate of $ 3 per day instead of $ 4 per day as charged by plaintiff.

"Affiant further says that he has used due diligence in trying to discover the whereabouts of said Gamble; that he has made inquiry from said Gamble's friends and acquaintances, and but a few days ago heard he was in Iowa.

"Affiant further says that he has good reason to believe and does believe that he can find said Gamble and procure his deposition and the time-book above mentioned within the time between this date and October 1, 1887.

"Affiant further says that this affidavit is not made for the purpose of delay, but that substantial justice may be done this defendant."

The action being for a demand within the ordinary...